Hyperlawhypertext legal database Garland v. Van Rensselaer 24 N.Y.S. 783

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Garland v. Van Rensselaer

24 N.Y.S. 783 Court N.Y. Gen. Term Decision date 1893-07-28 English

Delivered by BARNARD, P. J.

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p. 783
GARLAND et al. v. VAN RENSSELAER et al.
(Supreme Court, General Term, Second Department.
July 28, 1893.)

Headnote

1. Decision—What Constitutes—Filing.
The entry o£ an order for judgment in favor of plaintifE on the overruling of a demurrer to a complaint, with leave to answer on payment of costs, is a sufficient compliance with Code Civil Proc. § 1010, providing that, on a trial by the court, its decision must be filed within a certain time after final adjournment of the term.
2. Same—Directing Final Judgment.
An order that a demurrer be overruled, and that plaintifE have judgment thereon, with leave to defendant to answer on payment of costs, is a final order for judgment if the terms are not accepted, and therefore complies with Code Civil Proc. § 1021, providing that the decision of the court on the trial of a demurrer must direct the final or interlocutory judgment to be entered thereon.
Appeal from special term, Westchester county.
Action by Horace W. Garland and another against Cortlandt S". Van Rensselaer and another. From an order denying a motion to vacate a judgment entered on an order overruling a demurrer of Van Rensselaer to the complaint, he appeals.
Affirmed.
Argued before BARNARD, P. J., and PRATT, J.
Howard Allison, (Isaac N. Miller, of counsel,) for appellant.
E. B. & C. P. Cowles, (Charles P. Cowles and Justus A. B. Cowles,, of counsel,) for respondents.

The defendant Van Rensselaer demurred to-the complaint of the plaintiffs. The demurrer was overruled, and judgment ordered in favor of the plaintiffs therein, with leave to the defendant to answer within 20 days, upon the payment of $20 costs. The order was entered on the 28th of January, 1893, and a copy, with notice of the entry thereof, was served on the attorney for the defendant on the 3d of February, 1893. The costs were not paid, .and no answer was served within the time. The plaintiff entered judgment upon the demurrer in his favor, March 1, 1893. The demurring defendant made a motion to set aside this judgment as irregular, in that no decision had been made and filed under sections 1010 and 1021 of the Code.[1] The order for judg

1 Section 1010 provides that, “upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed in the clerk’s office within twenty days after the final adjournment of the term where the issue was. tried.” Section 1021 provides that “the decision of the court upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon.”

p. 784
ment was a sufficient decision under section 1010 of tlie Code. Eaton v. Wells, 82 N. Y. 576 ; Wood v. Lary, 124 N. Y. 83 , 26 N. E. Rep. 338 . The order for judgment was final if the terms were not accepted, and the judgment was regular, under section 1021, for that reason. The order should be affirmed, with costs and disbursements.

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