Peabody v. West

The defendant demurred to the complaint, which is for the foreclosure of a mortgage on real property, on the ground that it did. not state facts sufficient. The plaintiff gave notice of motion at the Special Term for motions in Kings County for judgment thereon as frivolous. Instead a decision was made overruling the demurrer ' as upon a trial of the issue of law, and an interlocutory judgment to that effect was entered, with leave to plead over. If this was a mistake the defendant should have moved before the court below to correct it. But it does not seem to be a mistake. The decision and ■ judgment recite that the issue of law was brought on for trial and tried, counsel.on both sides' being heard, and this imports absolute . verity. The issue could be tried at the Special Term for motions on consent, and that is what occurred according to the record.

Thé judgment should be affirmed.

■ Hirsohberg, P. J., Hooker, Eioh and Miller, JJ., concurred. Interlocutory judgment affirmed, with costs. •"