Smyth v. Graecen — 89 N.Y.S. 111

Majority

p. 111

(96 App. Div. 182.)

SMYTH v. GRAECEN.

(Supreme Court, Appellate Division, First Department.

July 13, 1904.)

Headnote

1. Demurrer—Judgment—Amendment.

Where an order provided that a demurrer to the complaint should be overruled, with costs to the plaintiff, with leave to answer on payment of costs to be taxed, an interlocutory judgment providing that the demurrer be overruled, and judgment rendered in favor of plaintiff, “as prayed for in the complaint,” with costs, was erroneous, and should be modified so as to provide that the demurrer be overruled, with costs, with leave to the defendant to answer on payment of costs within 20 days, and, in the event of his failure to do so, that final judgment be entered in accordance with the provisions of the Code of Civil Procedure applicable to such cases.

Appeal from Special Term, New York County.

Action by Caroline Smyth against Edward J. Graecen. From an order denying a motion to amend an interlocutory judgment, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHEIN, PATTERSON, and O’BRIEN, JJ.

Vincent P. Donihee, for appellant.

The defendant appeals from an order denying a motion to amend an interlocutory judgment. The action was for breach of promise of marriage, and the defendant demurred to the complaint. The demurrer was overruled. The order directing interlocutory judgment recites as follows:

“Ordered and adjudged that the demurrer herein interposed be, and the same is hereby, overruled, with costs to the plaintiff, with leave to answer upon payment of costs to be taxed, and that interlocutory judgment be, and is hereby, entered accordingly.”

After that a judgment was entered which provides as follows:

“Ordered and adjudged that the demurrer of the defendant herein interposed be, and the same is hereby, overruled, and judgment is hereby renderd in favor of the plaintiff and against said defendant, Edward J. Graecen, as prayed for ,in the complaint, with thirty-five ($35) dollars costs, with leave, however, to the said defendant, Edward J. Graecen, to answer the amended complaint herein upon payment of said costs.”

The provision in the judgment respecting the entry of judgment as prayed for in the complaint is technically wrong. The judgment' ought to be modified so that it shall provide that the demurrer is overruled, with costs, with leave to the defendant to answer upon payment of costs within 20 days, and, if he fails so to do, final judgment

p. 112

may be entered in accordance with the provisions of the Code of Civil Procedure applicable in such cases.

The order appealed from should be reversed, and an order entered in accordance with the views above expressed, with $10 costs and disbursements of the appeal to the appellant. All concur.