Von Oehsen v. Bartley

241 A.D. 619, 268 N.Y.S. 513

Opinion

Order granting plaintiff’s motion for judgment on the pleadings under rule 112 reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. The issues of fact raised by the denials contained in the answer precluded granting this motion. This is so irrespective of whether or not the affirmative defenses were sufficient or insufficient; there being no motion specifically directed to these defenses and counterclaim, as such, apart and distinct from the motion directed to the answer as an entirety, which contained these denials and raised questions of fact for a trial. Such a trial could have been speedily had under the Kings County Special Term rules, the following of which would have made unnecessary this abortive motion and would have avoided this appeal. Lazansky, P. J., Hagarty, Carswell, Seudder and Tompkins, JJ.,-concur.