
    Adolf Furmans, Plaintiff, v. Richard Gough, Defendant.
    (Supreme Court, New York Special Term,
    January, 1911.)
    Judgment — Rendition—At particular stages of the action — Judgment on the pleadings — Motion for — Interlocutory judgment.
    The provisions of section 547 of the Code of Civil Procedure, relating to a motion for judgment upon the pleadings, are applicable to interlocutory judgments as well as to final judgments; and where it appears upon such a motion that the only material allegations' of the complaint that are denied raise issues properly determinable upon the accounting and not material to the question of plaintiff’s right to an interlocutory judgment therefor, but the admitted facts entitled plaintiff to such a judgment, his motion therefor should be granted.
    Motion by plaintiff for an interlocutory judgment upon the pleadings.
    F. W. & A. E. Hinrichs, for plaintiff.
    James E; Fessenden, for defendant.
   Page, J.

This is a motion by the plaintiff for an interlocutory judgment upon the pleadings, under section 54F of the Oode of 'Civil Procedure. Objection is made by the defendant that 'the judgment contemplated by that section is a final and'not -an interlocutory one. I find nothing in the section nor in the purposes sought to he served by the section that would thus limit its application. “A judgment is either interlocutory or the final determination of the rights of the parties.” Code Civ. Pro., § 1200. Therefore, had the Legislature intended to thus limit the section, the word final ” would have been inserted before the word judgment.”

Any judgment, for which, upon the pleadings, -a party would he entitled to move upon a trial, can he made at Special Term, Bart One. The sole question to- he determined is whether, taking the allegations of the complaint, admitted by the answer, the plaintiff is entitled to -a judgment. If there is a single material allegation -controverted •by the an-s-wer th-at would. -have to be determined before plaintiff could have an interlocutory judgment, the motion must be -denied. There can be no tri-al had under this -section, and plaintiff’s proposed finding recites, properly, •that this cause -having been brought on upon a motion.”

I have carefully read the pleadings and find that the only material allegations of the complaint that are denied raise issues that are properly to be -determined upon -an accounting, and not in -any way material to the question as to whether plaintiff should have an interlocutory judgment for -an accounting, and that the -admitted facts entitle plaintiff to such interlocutory judgment. The finding will he settled in accordance with -the -changes th-at I h-ave indicated on plaintiff’s proposed findings. All questions -as to costs and allowances must be reserved for final judgment.

Motion granted. An interlocutory judgment for plain- • tiff as indicated. If the -attorneys can agree upon -a referee, a stipulation should he filed upon the settlement of the order, 'otherwise the court will appoint.

Ordered -accordingly.  