
    Rosa Schleissner, Respondent, v. Louis Goldsticker and Martin Goldsticker, Appellants, Impleaded with Ella Goldsticker and Others, Defendants.
    First Department,
    December 30, 1909.
    Practice—motion for judgment on pleadings after issue joined — sufficiency of pleadings maybe tested—partnership—nature of partnership realty — partition — sufficiency of complaint.
    On a motion for judgment on the pleadings after issue joined made under section 547 of the Code of Civil Procedure the sufficiency of the pleadings may be tested as upon a demurrer, and the party whose pleading is found to be insufficient may be permitted to amend upon proper terms.
    The section is designed, to enable either party to test his right to judgment on the pleadings without waiting for the cause to be reached on the trial calendar, and the practice is analogous to that on a motion to dismiss at the opening of a trial.
    Partnership real estate retains its character as realty with all the incidents of that species of property as between the partners themselves, and also as between the surviving partner and the representatives of a deceased partner in the absence of an agreement to the contrary, express or implied'^ between.the partners, subject only to the liquidation of partnership obligations.
    Hence, the complaint of one claiming as heir or devisee of a deceased partner seeking to partition lands owned by the partnership should not be. dismissed as insufficient where it is alleged that all the partnership debts have been paid in full except certain mortgages upon the lands and the title to at least one of the parcels stood in the name of all the partners. Where the nature of the partnership business is not disclosed it will not be assumed that it was engaged in the business of buying and selling lands.
    
      Appeal, bv the defendants, Louis Goldstieker and another, from an order óf the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 26th day of Movember, 1909, denying the said defendants’ motion to dismiss the complaint as to them.
    
      William Goldstialeer, for the appellants.
    
      Abraham Benedict, for the respondent.
   Houghton, J.:

After the defendants had interposed an answer to the plaintiffs 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 coiild 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 op 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 Term in examining these decisions,- of which he was.aware, was of opinion that the precisé 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.

The section permits a party to a litigation, after issue has been' joined and each has alleged by way of complaint or defense what he deems advisable, to test the right of either to judgment on the pleadings by motion, without waiting for the cause to be reached upon the trial calendar, and. we have held that such procedure is analogous to a motion at the opening of the trial. (Clark v. Levy, 130 App. Div. 389.) The court has established a practice on such motion analogous to that upon demurrer, and in a proper case has held that a party whose pleading has been found insufficient should be permitted upon proper terms to amend.

The appellants insist that had the sufficiency of the complaint' been tested it would have been found insufficient. We think not. The action is for the partition of real property alleged to have been purchased by a copartnership. One of the partners, through whom the plaintiff claims, died, thus terminating the partnership, and the complaint avers that all partnership debts have been paid in full except mortgages on the real estate in question. The title to at least one of the parcels described stood in the name of all three partners. The business of the partnership is not disclosed, but it does not appear that that business consisted of buying and selling real estate, and it cannot be assumed that the partnership business was of such a character.

In the absence of any agreement, express or implied, between the partners to the contrary, partnership real estate retains its character as realty, with all the incidents of that species of property between the partners themselves and also between a surviving partner and the representatives of a deceased partner, subject only to liquida ion of partnership obligations. (Darrow v. Calkins, 154 N. Y. 503.)

Notwithstanding the express holding of the above decision, the appellants insist that the complaint falls within the later case of Buckley v. Doig (188 N. Y. 238). In this latter case the partnership was formed for the purpose of dealing in real estate, and it was held that the real estate being the merchandise in which the ■copartnership traded, the acts of the parties showed an intention to convert the realty into personalty, and that there ivas of necessity an implied agreement that it be so treated. For aught that appears in the present complaint, the real property sought to be partitioned may have been purchased as an investment from the surplus earnings of the copartnership. In such a case it would retain its character of realty and be subject to partition if the partnership obligations had been satisfied without resorting to it.

Without passing upon the question as to whether a partition action is proper where title was not vested in all of the partneré, but only in one or more for the benefit of the others, the present complaint states a good cause of action, for, as above indicated, the allegation is that as to one of the parcels the title was in all three of the partners. The partnership obligations having been satisfied, as to this parcel at least, the heir or devisee of the deceased partner could maintain an action in partition.

It follows, therefore, that the learned Special Term, although .the reason which he gave- was untenable, properly refused to grant judgment in favor of the defendants dismissing plaintiff’s complaint.

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

Ingraham, McLaughlin, Clarke and Scott,. JJ., concurred.

. Order affirmed, with ten dollars costs and disbursements.  