Schlesinger v. Louis Meyer Realty Co.

114 N.Y.S. 341

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1909
• Status: Published

Opinion

PER CURIAM.

This is an action on a promissory note against the Meyer Realty Company as maker and Louis Meyer as indorser. The court below overruled the demurrer of the defendant Louis Meyer, and rendered judgment absolute thereon in favor of plaintiff against the defendant Meyer, in direct violation of section 145 of the Municipal Court Act (Laws 1902, p. 1535, c. 580), which provides:

“Where a demurrer is interposed and disallowed, the court must, notwithstanding the return day has passed, grant leave to plead as if no demurrer had been interposed.”

The court permitted the defendant company to frame issues under section 1778 of. the Code, and defendant filed a verified answer prior to the return day. On the return day the plaintiff moved for judgment, and the court ruled as follows:

. “On plaintiff’s motion for judgment, the same is granted, as the defendant corporation has not set forth the proper affidavit for leave to file answer.”

The court having granted leave to frame issues before the return day, and a duly verified answer having been filed, the defendant corporation should have been allowed a trial.

Judgment reversed as to both defendants, and new trial ordered, with costs to appellants to abide the event.