
    David Fried, Appellant, v. Morris Rivkin and Charles Rivkin, Respondents.
    
    (Supreme Court, Appellate Term, Second Department,
    March, 1916.)
    Motions and orders — of Municipal Court of city of New York — judgment on the pleadings — appeal — Municipal Court Code, §§ 88, 8g — joinder of issue.
    An order of the Municipal Court of the city of New York denying a motion for judgment on the pleadings made at the trial is not appealable:
    
      Orderly procedure requires the dismissal of an appeal from such an order though the question of its appealability is not raised by either party.
    Sections 88 and 89 of the Municipal Court Code (Laws of 1915, chap. 279), construed in the light of section 90 of said Code, were intended to provide a method of testing the sufficiency of a pleading.
    While a motion for judgment on the pleadings can be made at any time after joinder of issue all motions under sections 88 and 89 of the Municipal Court Code should be made before trial.
    Appeal from an order of the Municipal Court of the city of New York, borough of Brooklyn, seventh district.
    Louis J. Gold, for appellant.
    Joseph J. Schwartz, for respondents.
    
      
      
         See 93 Misc. Rep. 461.—[Repr.
    
   Callaghan, J.

This appeal is from an order the effect of which was to deny the motion made by the plaintiff upon the trial for judgment on the pleadings.

The action was brought to recover upon an undertaking given on an appeal from a judgment.

An exception to the sufficiency of the sureties, who are the defendants in this action, was served, but they failed and refused to justify, and the exception to their sufficiency was not withdrawn.

The complaint sets forth a cause of action on the undertaking, but makes no reference to the exceptions which were served or the failure of the sureties to justify.

The answer admits by failure to deny the material allegation of the complaint, and as a separate defense alleges the giving of the undertaking and service of the notice of exceptions to the sufficiency of the sureties, the failure of the sureties to justify, and that the exceptions were never withdrawn

Permission to appeal was granted by the justice below, he apparently being under the impression that the motion was made and heard pursuant to the provisions of sections 88 and 89 of the Municipal Court Code. Provision for an appeal from orders made pursuant to these sections is found in subdivision 7 of section 154 of the Municipal Court Code. Such an appeal can only be granted by permission of the trial justice or by a justice of the appellate court. This motion could have been made and heard only pursuant to the authority given by section 91 of the Code, as the motion can be construed only as an application for judgment on the pleadings. Neither the complaint nor the special defense is demurrable or defective in any particular, and the defendant by moving upon the pleadings admitted the facts alleged therein to be true.

Therefore, the only question presented to the trial judge was, which of the parties, on the state of facts set forth in the pleadings, was entitled to judgment. He entertained the motion and properly disposed of it, but we are without power to review the order made by him denying the motion for judgment on the pleadings, because it is not an appealable order.

The right to appeal is a matter of favor and must be authorized by statute, and nothing in section 154, supra, can be found which gives a right to appeal from such an order, and, although the question of the right to appeal is not raised by either party, orderly procedure requires the dismissal of the appeal when authority for it is not found in the statute.

The motion resulting in the order appealed from could not be made or heard pursuant to the provisions of sections 88 and 89 of the Code. Construed in the light of section 90, it is apparent that these sections were intended only to provide a method by which the sufficiency of a pleading could be tested.

They took the place of all forms of demurrers, pleas of abatement, the statute of limitations and the various technical defenses given by statute. The legislature intended by these sections to establish a uniform practice for disposing of all objections to the pleadings which do not go to the merits before the action is reached for trial. Such objections can be raised by necessary motion or special appearance. This practice is new and has not heretofore been in vogue in any of the courts of this state.

All motions under sections 88 and 89 of the Code should be made upon motion before the trial, while a motion for judgment on the pleadings can be made, as was the one upon the trial, at any time after issue joined.

It follows therefore that this appeal must be dismissed, with ten dollars costs.

Blackmab and Kappeb, JJ., concur.

Appeal dismissed.  