Oesterreiches v. Jones — 10 N.Y. St. Rep. 356

Majority

p. 356

Ignatz Oesterreiches, App'lt, v. George W. Jones et al., Resp'ts.

{Supreme Court, General Term, Second Department,

Filed July 1, 1887 )

Headnote

Pbactice—Judgment fob costs—Costs on demuebeb to pabt of pleading—When can be enfoeced.

The complaint in a certain action was framed to recover damages of the defendants for injuries inflicted hy their neglect. The answer took issue upon the facts and set up a counterclaim, The counterclaim was held had on demurrer and plaintiffs entered up judgment thereon with costs. Held, irregular. That the costs were interlocutory and not final, and could not he enforced until the final judgment was rendered. Following Robinson v. Hall, 35 Hun, 21 i.

Appeal from an order vacating a judgment made at the Kings county special term, on the ground that it was irregularly entered.

Wehle & Jordan, for app’lt; Smith & Dougherty, for resp’ts.

The complaint is framed to recover damages of the defendants for injuries inflicted by their neglect. The averment being that they are the owners of a building, a part of which is rented to the plaintiff, and that they opened a place in the roof and carelessly left it unprotected, whereby the rain injured .the plaintiff’s goods.

The answer took issue upon' the facts, and set up a counterclaim. This counterclaim was based upon an averment that the plaintiff had, without the defendant’s consent, made a structure upon the roof, which was against the city ordinance, and that the defendants were compelled to repair it at an expense of $250.

To the counterclaim the plaintiff demurred and had judgment thereon in his favor. The plaintiffs entered up judgment thereon with costs. The order at special term set aside this judgment.

p. 357

The moving papers sufficiently indicated the irregularity. The entry of a judgment while the issues of fact were undisposed of, was given as the reason for the motion, which the plaintiff’s attorney says he is advised and believes to be irregular. It was irregular. This was so held in Robinson v. Hall ( 35 Hun. 214 ), where a portion of the complaint was held bhd on demurrer.

Judgment was entered thereon, and the court at special term set it aside as irregular, citing many authorities.

The same thing was held in Armstrong v. Cummings ( 22 Hun, 570 ). The demurrer in this case was to one defense in an-answer.

The demurrer was sustained, and the court held that the costs were not capable of assessment. They were interlocutory and not final, and could not be enforced until the final judgment was rendered.

Order affirmed, with costs and disbursements.

Dykman, J., concurs; Pratt, J., not sitting.