128 N.Y.S. 791 | N.Y. App. Div. | 1911
The action is to foreclose a second mortgage. The complaint, in addition to the customary allegations in such actions, also alleges that in order to protect his hen, and pursuant to special covenants in the mortgage, the plaintiff has paid certain sums for taxes on said property and for interest upon the prior mortgage, and these sums he seeks to include in the judgment of foreclosure. The defendant owner has interposed an answer in which it denies that it has any knowledge or information sufficient to form a belief as to the. allegations respecting the payment of said taxes and interest. A similar denial of the allegations as to the assignment of the mortgage to plaintiff is not insisted upon as raising an issue, but the defendant appellant does insist that the denials as to the payment of taxes and interest do raise issues which it is entitled to have tried and disposed of according to the rules and practice prescribed by law. The order appealed from results from a motion for judgment by plaintiff under section 547 of the Code of Civil Procedure.. It is now well settled that such a motion is a mere substitute for a motion for judgment on the pleadings at the. trial; that it cannot be granted when the pleadings contain any material issue of fact upon which evidence must be taken to warrant judgment, and that upon such a motion nothing but the pleadings can be considered. . In effect, therefore, such a motion must always involve only a question of law, that ques-.tion being whether or not, upon the undisputed facts, the party making the motion is entitled to judgment. The present cáse does not answer to these requirements. While we may.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings denied, with ten dollars costs.
Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
Order reversed, with tén dollars costs and disbursements, and motion denied, with ten dollars costs.