Mayr v. Apton

Appellant moved at Special Term to compel respondents to separate and number the causes of action sought to be stated in their complaint, pursuant io rule 90 of the Rules of Civil Practice, and for other relief against the pleading, pursuant to rules 102 and 103 of said rules. The motion was denied. On this appeal no argument is made that the order appealed from, insofar as it denies the motion for relief under the stated rules, should be reversed. Appellant contends that we should reverse the order, insofar as it fails to grant a motion to dismiss the complaint for insufficiency, and grant the motion, stating that a motion for that relief was made under his demand for other and different relief, without objection by respondent. Order affirmed, with $10 costs and disbursements. The difficulty with appellant’s position is that the papers submitted in support of his motion do not disclose that application to dismiss the complaint for insufficiency was made at Special Term, and it is apparent from the order appealed from that no such motion was passed on. Furthermore, appellant’s notice of appeal is not sufficient to bring before this court for review the denial of such a motion. Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.