Legal Opinion

Dahm v. O'Connell

Appellate Division of the Supreme Court of the State of New York

Decided July 31, 1917PublishedCited by 2 opinions

Appeal by the plaintiff, James H. Dahm, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bongs on the 27th day of September, 1916, upon the decision of the court sustaining defendant’s demurrer to a complaint for slander and dismissing the complaint. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.

1Opinion of the Court

Putnam, J.:

Where a complaint is demurred to, plaintiff has three ways to test such demurrer. If he moves for judgment under Code of Civil Procedure, section 547, the court which sustains the demurrer should deny this motion by an order. Without some cross-motion or some notice of a trial of the issues of law, judgment should not be entered for defendant. (Ventriniglia v. Eichner, 138 App. Div. 274; Manhattan & Jamaica Railway Co. v. Brady, 170 id. 322; Taishoff v. Elkema, 171 id. 288, 295.) Agreeing with the learned court at Special Term that the complaint was insufficient (96 Misc. Rep.…

2Cases cited3 opinions

  1. Ventriniglia v. EichnerAppellate Division of the Supreme Court of the State of New York · 1910
  2. Keyes v. Lestershire Heights Realty Co.Appellate Division of the Supreme Court of the State of New York · 1916
  3. Dahm v. O'ConnellNew York Supreme Court · 1916

3Cited by2 opinions

  1. Bullville Milk Producers Ass'n v. ArmstrongNew York Supreme Court · 1919
  2. Bryant v. ShawAppellate Division of the Supreme Court of the State of New York · 1920

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