Shipley v. Schmitzer

Appellate Division of the Supreme Court of New York

Shipley v. Schmitzer

224 A.D. 730

Appellate Division of the Supreme Court of the State of New York·Decided May 15, 1928·Published·Cited by 7 cases

Opinion

Motion denied, with ten dollars costs. Sections 278-283 of the Civil Practice Act relate solely to.motions formerly called demurrers. (255 Fifth Avenue Corporation v. Freeman, 120 Misc. 472.) Hence, section 282 of said act does not apply to a motion to dismiss a complaint made under rule 107, subdivision 6, and service of an answer to a complaint to which such a motion has been addressed would not be deemed an abandonment of such motion. Defendant does not, therefore, require an extension of time to answer pending an appeal from the order denying such motion. Present — Dowling, P. J., Merrell, Finch, McAvoy and O ’Malley, JJ.

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Motion denied, with ten dollars costs. Sections 278-283 of the Civil Practice Act relate solely to.motions formerly called demurrers. (255 Fifth Avenue Corporation v. Freeman, 120 Misc. 472.) Hence, section 282 of said act does not apply to a motion to dismiss a complaint made under rule 107, subdivision 6, and service of an answer to a complaint to which such a motion has been addressed would not be deemed an abandonment of such motion. Defendant does not, therefore, require an extension of time to answer pending an appeal from the order denying such motion. Present — Dowling, P. J., Merrell, Finch, McAvoy and O ’Malley, JJ.

Shipley v. Schmitzer, 224 A.D. 730 (N.Y. Ct. App. 1928).

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