
    Manhattan and Jamaica Railway Company, Appellant, v. Paul T. Brady and Willard V. King, as Receivers of South Shore Traction Company, and Others, Defendants, Impleaded with Manhattan and Queens Traction Corporation, Respondent.
    Second Department,
    November 19, 1915.
    Practice—motion for judgment upon the pleadings after demurrer to complaint—trial of issues on demurrer.
    The plaintiff, on a motion for judgment upon the pleadings, made after a demurrer to the complaint, may avoid an additional hearing upon the issues raised by the demurrer by giving notice for the trial of such issues. (Schwartz v. Williams, 153 App. Div. 302.)
    But such a motion, made without asking for the trial of the issues raised by the demurrer, will be denied, where it appears that the complaint is defective.
    Appeal by the plaintiff, Manhattan and Jamaica Railway Company, from 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 Queens on the 17th day of February, 1915, denying its motion for judgment on the pleadings as against the respondent after a demurrer had been interposed to the complaint.
    
      Robert H. Elder [Otho S. Bowling with him on the brief], for the appellant.
    
      Robert S. Sloan, for the respondent.
   Per Curiam:

The plaintiff appeals from an order of the Special Term that denies its motion for judgment on the pleadings made after the defendant Manhattan and Queens Traction Corporation had joined issue by a demurrer to the complaint, based upon subdivisions 2, 3, 6, 7 and 8 of section 488 of the Code of Civil Procedure. The learned Special Term was of opinion that there are certain defects in the complaint which required denial of the motion, adding: “Upon the argument of the demurrer all defects may be pointed out and permission given to amend, but this motion has no such purpose in view.” The defects specified in the opinion of the Special Term, or at least some of them, are in our opinion grave enough to justify an affirmance of the order. In Posner v. Rosenberg (153 App. Div. 249) we decided when the plaintiff had moved for judgment on the pleadings, which was denied, that in the absence of a counter motion on the defendant’s part the demurrer still stood, and thereby an issue of law was raised which could only be disposed of by trial; citing Ventriniglia v. Eichner (138 App. Div. 274) and Zeikus v. Florida East Coast R. Co. (70 Misc. Rep. 339; affd., 144 App. Div. 91). Ventriniglia’s Case (supra) was also approved by us in Jamaica Water Supply Co. v. Hill (157 App. Div. 894). We have concluded, therefore, not to discuss the merits of the decision at Special Term. And, inasmuch as upon this appeal we could not afford any affirmative relief to the respondent upon its demurrer, there is no reason why now we should discuss the merits thereof. The trial of the demurrer will afford a full hearing upon the pleadings. The plaintiff could have avoided the burden of such an additional hearing by procedure indicated in Schwartz v. Williams (153 App. Div. 302).

The order is affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order affirmed, with ten dollars costs and. disbursements.  