128 N.Y.S. 51 | N.Y. Sup. Ct. | 1910
This is a -demurrer to the complaint in an action for libel upon the ground that it fails to state facts sufficient to constitute a cause of action. It appears from a certified copy of an order presented without objection, upon the hearing of the demurrer, that subsequently to the service of the demurrer the plaintiff moved at Special Term, Part I, for judgment upon -the pleadings now before the court. The learned justice presiding at Special Term simply denied thi-s motion upon the ground, recited in the order, that the complaint was legally insufficient, and, following the practice outlined in Ventriniglia v. Eichner, 138 App. Div. 274, refrained from dismissing the complaint. The -consideration of the motion necessarily involved a determination as to the sufficiency of the complaint. The court, therefore, is now required t-o pass upon the practice
Demurrer sustained,