Binder v. Robinson — 110 N.Y.S. 229

Majority

p. 229

BINDER v. ROBINSON.

(Supreme Court, Appellate Term.

May 15, 1908.)

Headnote

1. Courts—Municipal Courts—Entry op Judgment.

Where, after overruling a demurrer to complaint, the Municipal Court indorsed on the summons, “Demurrer overruled with leave to plead over, answer to be filed’’ on a certain date, the indorsement did not amount to a judgment, so as to be appealable, though it might be sufficient, under rule 3 of the rules of practice of the Municipal Court, to show a decision; the proper practice being to enter an order overruling the demurrer, followed by entry of an interlocutory judgment.

p. 230

2. Same—Trial by Demurrer.

The Municipal Court act contemplates the entry of a judgment on a trial by demurrer, as indicated by Municipal Court Act, Laws 1902, p. 1587, c. 580, § 334, making provisions for costs on trial by demurrer.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Henry Binder against Caroline Robinson. From a purported interlocutory judgment for plaintiff in the Municipal Court, defendant appeals.

Appeal dismissed.

Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.

John F. Harrington, for appellant.

- Herman Weiss, for respondent.

The defendant appeals from what he states in the notice of appeal as being “the interlocutory judgment of this court overruling the defendant’s demurrer to the complaint.”

There is no such judgment in the record. The summons is indorsed as follows: “Demurrer overruled, with leave to plead over. Answer to be filed on or before February 26th * * * ”—and this is signed by the justice. This is far from being a judgment. An indorsement upon a summons in a Municipal Court action may be sufficient, under rule 3 of the rules of practice of the Municipal Court, as evidencing a decision by the justice making it, but it is not sufficient as a judgment. Dalton v. Loughlin, 4 Abb. N. C. 187 . The proper practice is to enter an order overruling the demurrer. This to be followed by the entry of an interlocutory judgment, from which an appeal would lie. Smith v. Ely, 46 Misc. Rep. 458 , 92 N. Y. Supp. 310 .

That the Municipal Court act contemplates the entry of a judgment on a trial by demurrer is shown by the provision for costs made in such a case in section 334 of that act (Laws 1902, p. 1587, c. 580).

Appeal dismissed, with $10 costs.