
    Realty Associates, Appellant, v. William G. Hoage, Respondent, Impleaded with Cyrus B. Gale and Roswell C. Stevens, Defendants.
    Second Department,
    December 30, 1910.
    Practice — judgment on pleadings — demurrer to complaint.
    A defendant who has demurred to a complaint can test the sufficiency thereof by a motion for judgment on the pleadings .under section 547 of the Code of Civil Procedure and the court should not deny the motion solely because a serious question of law is presented.
    Hirschbekg, P. J., dissented. '
    Appeal by the plaintiff, Realty Associates, from that part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of September, 1910, which denied plaintiff’s motion for judgment on the pleadings.
    
      Lynn G. Morris, for the appellant.
    
      Framik W. Holmes, for the respondent.
   Per Curiam :

Hpon the complaint, and the demurrer of the defendant Hoage, plaintiff moved at Special Term for Motions “ for judgment on the pleadings pursuant to the provisions of section 547 of the Code of Civil Procedure,” and for certain relief. The learned Special Term ■ denied the motion as to' the defendant Hoage, in that he had “ interposed a. demurrer to the complaint which presents a serious question ■ of law and cannot be disposed of on this motion,, inasmuch as the plaintiff has simply moved .under section 547 of the Code and not under section 976: of the Code, which permits of an issue of law arising upon-demurrer, to J>e brought on at any time as a contested motion.” . ■

In Theiling v. Marshall (140 App. Div. 134), decided by us in October, 1910, defendant demurred to the complaint, and plaintiff moved for judgment on the pleadings under the provisions of section 547 of • the Code of Civil' Procedure.. The motion was denied, and this court, per Woódward, J., said: “ The denial of-this motion.gives rise -to an appeal from the order entered, and the practical question presented is whether the complaint states facts 'sufficient to constitute a cause of 'action. If ft does, tlien we are of the opinion that'the motion was properly made, and that the plaintiff should have been given judgment upon the pleadings, or the defendant, should have been given permission, under proper conditions, to answer.”

In Jones v. Gould (130 App. Div, 451) this court, in its First Department, by Laughlin,. J., said: “Under the former practice the sufficiency of' a -complaint Could only be tested by demurrer or by motion to dismiss upon the trial. Bow, however, the sufficiency of a complaint may be tested by motion to dismiss made at Special Term in advance of the trial. (Code Civ. Proc. § 547, added by Laws of 1908, chap. 166.) ” And in Schleissner v. Goldsticker (135 App. Div. 435) it is also said, per Houghton, J.:. “After the defendants had interposed an answer to the plaintiff’s complaint they moved for judgment in their behalf under section 547 of the Code of Civil Procedure. The learned Special Term denied the motion on the ground that on a motion under the provisions of that-section of the Code the insufficiency of the complaint could not be tested! As the provisions of that section have been interpreted by this court such view is erroneous. By our decisions we have said that section 547 of the Code permitted, in effect, a trial of the action upon the pleadings, and that on a motion made thereunder the sufficiency of the complaint could be tested as well as the insufficiency of a defense. (Jones v. Gould, 130 App. Div. 451; Milliken v. Fidelity & Deposit Co., 129 id. 206; Searle v. Halstead & Co., 130 id. 693; Levy v. Roosevelt, 131 id. 8; Crimmins v. Carlyle Realty Co., 132 id. 664; Ship v. Fridenberg, Id. 782.) The learned Special'Térm in examining these decisions, óf which he was aware, was of opinion that the precise point had never been raised, and, as reported, they do not disclose that it had been. In making our decisions, however, this court has, in fact, considered the question and concluded that of necessity the complaint as well as the answer must be searched ‘ in determining whether or not a motion for judgment on the pleadings should or should not be granted.” • (See, too, Lane v. Fenn, 194 N. Y. 597.)

We are of opinion that the order appealed from must be reversed, with ten dollars costs and disbursements, and that the matter must be remitted to the Special Term for a decision upon the merits.

Woodward, Jenks, Thomas and Rich, JJ., concurred; Hirschberg, P. J., dissented.

Order so far as appealed from reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term for decision upon the merits.  