Hyperlawhypertext legal database Riggs v. Stewart 14 N.Y. St. Rep. 695

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Riggs v. Stewart

14 N.Y. St. Rep. 695 Court N.Y.C.P. Decision date 1888-02-06 English

Delivered by J. F. Daly, J.

Contents

Majority

p. 695
John Riggs et al., Resp’ts, v. James Stewart et al., Appl’ts.
(New York Court of Common Pleas, General Term,
Filed February 6, 1888.)

Headnote

1. Demurrer—Interlocutory judgment should be entered where LEAVE TO AMEND OR PLEAD IS GIVEN.
Upon the decision of a demurrer, where leave to amend or plead is given, interlocutory judgment containing such provisions, should be entered, and if advantage is not taken of the privilege to amend or plead by the party permitted to do so, then final judgment should be entered.
3. Same—Decision of—When time to amend or plead begins to run.
Where a demurrer has heen decided and leave given to plead or amend, the time within which it may be done does not begin to run until the entry of the interlocutory judgment.
8. Judgment—In action to foreclose a mechanic’s .lien—Should contain DIRECTION FOR SALE OF PROPERTY AFFECTED BY THE LIEN.
An order for judgment in an action brought to foreclose a mechanic’s lien should contain a direction for the sale of the property affected by the lien.
J. W. Cleveland, for resp’ts; Wm. P. Prentice, for app’lts.

The proper practice on the decision of a demurrer, where leave to amend or to plead is given, is to enter an interlocutory judgment containing süch provision,

p. 696
and if the party does not avail himself of the privileges given to amend or to plead, then to enter final judgment in the action. It has been held that the time in which the party is to amend or plead does not run until the entry of the interlocutory judgment. Dugeois v. McCrackan, 22 Hun, 89 .

That case correctly states the practice that should be followed under section 1021 of the Code.

In this case no judgment has been entered, either interlocutory or final. After the entry of an order directing judgment on overruling the demurrer, “unless defendants, James Stewart and James Devlin, pay to the plaintiff’s attorney ten dollars costs, and serve a copy of their answer to the amended complaint within ten days,” the plaintiffs waited ten days, and then entered another order for judgment, which, however, was not in the proper form, in an action to foreclose a mechanic’s lien, there being no proof taken and no direction for a sale of the property affected by the lien. Judgment was entered upon this last order, but it was also irregular, as there was no provision for a sale of the property, and as it contained a direction that a a further “judgment be entered against the property,” etc.

The last named order and judgment should be reversed, and the plaintiffs left to enter an interlocutory judgment upon the original order overruling the demurrer, which latter order is affirmed, as the defendant’s demurrer is not well taken.

No costs of this appeal.

Larremore, Oh. J., and Allen, J., concur.