Maria Josephine Ventriniglia, Appellant, v. Daniel Eichner, Respondent

Maria Josephine Ventriniglia, Appellant, v. Daniel Eichner, Respondent. First Department, May 6, 1910. Practice — trial of issue on demurrer —• notice of trial necessary — motion for judgment on pleadings after demurrer. The trial of an issue-raised by demurrer can only be brought on by .serving a notice of trial and note of issue as required by section 977 of the Code of Civil Procedure. . Hence, where no notice of trial was served after demurrer by the'defendant, the court on a motion by the plaintiff for judgment on the pleadings cannot sustain the demurrer and dismiss the complaint.- Under such circumstances the only motion before the court is that for"judgment on the pleadings. Appeal by the plaintiff, Maria Josephine Yentriniglia, from an order of the Supreme Court, made at the New York Special Term and entered in. the office of the clerk of the county of New York on the 24th day of March, 1910, denying the plaintiff’s motion, under section 547 of the Code of Civil Procedure, for ¡judgment on the pleadings arid dismissing the complaint. G. Arnold Moses, for the appellant. Arthur Furber, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: This action was brought by an owner of certain real estate to compel the surrender and cancellation of a tax lease issued upon the property by the, comptroller of the city of New York upon the ground that the same was a cloud upon her title. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and then ¡the plaintiff moved for judgment on the pleadings. The trial of the issue raised by the demurrer could only be brought on as provided in section 977 of the Code of Civil1 Procedure. Notwithstanding, the fact that the defendant had pot served the notice of trial" provided in the section, or asked for any affirmative relief, the court, nevertheless, assumed to dispose of the plaintiff’s motion as though it were the trial of the demurrer, and made an order denying the motion and sustaining the demurrer, and directed judgment for the defendant dismissing the complaint, with costs; unless within ten days plaintiff paid the costs and served an amended complaint. The only motion before the court was one made by plaintiff for judgment in her favor, and only that motion should have been decided. Besides, it would seem, under Sanders v. Parshall (67 Hun, 105; affd., 142 N. Y. 679), that the complaint does state a cause of action, but that question must be determined on a trial of the issues raised by the demurrer, and for that reason we do nob at this time pass upon it. The order appealed from, therefore, is reversed, with ten dollars costs and disbursements to the appellant, and the plaintiff’s motion for judgment on the pleadings denied, with ten dollars costs to the defendant. Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Order reversed, -with- ten dollars costs and disbursements to appellant, and plaintiff’s motion for judgment denied, with ten dollars costs to defendant.