Sabol v. Frost

217 A.D. 254, 217 N.Y.S. 757, 1926 N.Y. App. Div. LEXIS 7789

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1926
• Status: Published

Opinion

Per Curiam.

Defendant moved for judgment, apparently under rule 106 of the Rules of Civil Practice, upon the grounds that the complaint on its face was insufficient and that it disclosed a defect of parties. The court at Special Term seems not to have passed on the question of insufficiency. The order, without denying the motion on that ground, merely directs the bringing in of another party.

The objection of a defect of parties should be taken by motion under rule 102, not under rule 106. (Spaulding v. First National Bank, 210 App. Div. 216; affd., 239 N. Y. 586.)

Nevertheless it was probably within the discretion of the Special Term, particularly as there was a prayer for other relief, to order amendment as under rule 102, if it could be done without prejudice and if the defect appeared in the papers before the court. Here the only paper before the court was the complaint itself. It discloses no defect of parties and no necessity for amendment in that respect. It contains no allegation to show by whom the two mortgages were to be made. For aught that appears they might be made by anybody. Nor is there any reference to a bond or covenant to pay.

Since the court below did not pass on the question of insufficiency, we do not deal with it here. On that point the defendant is at liberty to move as he may be advised.

The order should be reversed, with ten dollars costs and disbursements.

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ.

Order reversed, with ten dollars costs and disbursements.