Citation Numbers: 147 Misc. 557
Judges: Cunningham
Filed Date: 4/27/1933
Status: Precedential
Modified Date: 1/12/2023
Upon these motions affidavits will not be considered, only the pleadings being before the court. (Rules Civ. Prae. rule 112; Germini v. New York Central R. R. Co., 209 App. Div. 442, 447.)
All the pleadings are before the court upon these motions. (Richardson v. Gregory, 219 App. Div. 211; affd., 245 N. Y. 540.)
Of course, when a motion is made by a defendant for judgment upon the pleadings, he admits that the allegations of the complaint are true, except as modified by a bill of particulars or other pleading of the plaintiff.
When a reply is not required, the new matter set forth in the answer is deemed controverted. (Civ. Prae. Act, § 243; Germini v. New York Central R. R. Co., supra.)
Even though the new matter in the answer constitute a counterclaim, if it is not named and pleaded as such, the plaintiff may controvert it without serving a reply. (American Guild v. Damon, 186 N. Y. 360.)
The motion is granted as to the defendant Max Fogel.
The complaint alleges that the defendant Max Cohen is the record owner of the mortgaged premises. This makes Max Cohen and his wife proper parties to the foreclosure action. (Civ. Prac. Act, § 1079, subd. 1, pars. 1, 4.)
Therefore, as the complaint states a cause of action against such defendants, it will not be dismissed as to them. (Traub v. Arrow Mfg. Corp., 207 App. Div. 292, 296.)
In that case the court holds that the prayer for relief is immaterial on defendant’s motion for judgment on the pleadings, saying, “ much of the relief sought can be ignored on this motion, and the relief to which the plaintiff is entitled should be left to the trial court after hearing the proofs in the light of the allegations of the complaint.”
Moreover, I am of the opinion that the right of the plaintiff to a deficiency judgment against the defendants Cohen and the questions arising upon their defenses thereto, should not be passed upon until the issues have been tried and all the facts placed before the court.
The motion of the defendants Cohen is denied, with ten dollars costs to the plaintiff to abide the event of the action.