
    CAPPADONNA v. ILLINOIS SURETY CO.
    (Supreme Court, Special Term, New York County.
    April 27, 1910.)
    Pleading (§ 222)—Pleading After Demurrer Overruled.
    Under Code Civ. Proc. § 547, added by Laws 1908, c. 166, providing that, if either party is entitled to judgment on the pleadings, the court may, on motion, at any time after issue joined, give judgment accordingly, in order to determine whether the unsuccessful party should be given leave to plead, he should be required to present an affidavit showing that there are facts which will enable him to overcome the defects in the pleading held to be bad, or to interpose an answer or reply, as the case may be, in place of an overruled demurrer.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. § 574; Dec. Dig. § 222.*]
    Action by one Cappadonna against the Illinois Surety Company. Leave to answer granted defendant.
    Gino C. Speranza, for plaintiff.
    Wray & Callaghan, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GREBNBAUM, J.

The defendant having demurred to the complaint, the plaintiff moved for judgment upon the pleadings pursuant to section 547 of the Code of Civil Procedure. The court in effect overruled the demurrer by granting judgment for the plaintiff, directing that notice of settlement of the order be given. Defendant asks for leave to answer.

In my opinion, the practice quite universally prevailing of permitting the defeated party, after the trial of a demurrer, to plead anew upon payment of taxable costs, is liable to lead to abuse, unless the court has some proof before it tending to show that the party asking leave to amend is in a position to plead upon the facts. In view of the new provision embodied in section 547 of the Code, I think a simple practice and a convenient mode of determining whether or not leave to plead shall be granted to the unsuccessful party is to require him to present, upon the settlement of the order, an affidavit showing that there are facts which will enable him to overcome the defects in the pleading held to be bad, or to interpose an answer or reply, as the case may be, in place of the overruled demurrer. The court will then be in a position to exercise its discretion whether or not to grant leave to plead. By suggestion of the court the_ defendant has submitted an affidavit which shows that defendant is in a position to answer. A case is therefore presented where leave to answer should be granted upon the payment of taxable costs to date.

Order submitted by defendant signed.  