Lobsitz v. E. Lissberger Co.
New York Supreme Court
Action by one Lobsitz against E. Lissberger Company. On plaintiff’s motion for judgment on the pleadings. Complaint ordered dismissed on defendant’s demurrer. Order reversed 168 App. Div. 840, 154 N. Y. Supp. 556.
1Opinion of the CourtShearn, J.
[1] When the defendant has demurred to the complaint, and the plaintiff moves for judgment on the pleadings, the proper practice is for the defendant to serve a counter notice, returnable at the same time, stating that the issue of law raised by the demurrer will be brought on for trial as a contested motion. In such case, if the complaint is insufficient, it may be dismissed, and, in the discretion of the court, leave granted to amend upon terms.
[2] The failure of the defendant to serve such a counter notice does not necessarily preclude the court from dismissing the complaint. When the only…
2Cases cited1 opinion
- Ventriniglia v. EichnerAppellate Division of the Supreme Court of the State of New York · 1910
3Cited by1 opinion
- Rieser v. L. Prager, Inc.Appellate Terms of the Supreme Court of New York · 1916