Garland v. Van Rensselaer — 53 N.Y. St. Rep. 876

Majority

p. 876

Horace W. Garland et al., Resp’ts, v. Cortlandt S. Van Rensselaer et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Pleading—Demurrer—Judgment.

A demurrer to the complaint was overruled and judgment ordered for plaintiffs with leave to defendant to answer within twenty days on payment of costs, which permission was not acted upon, and' judgment was entered hy plaintiffs. Held, that the order for judgment was a sufficient decision under § 1010 of the Code, and was final if the terms were not accepted, and that the judgment was regular under § 1021 for that reason.

Appeal from order denying motion to vacate a j udgment in favor of plaintiffs.

Howard Allison, for app’lts; Charles P. Cowles and Justus A. B. Cowles, for resp’ts.

The defendant Van Bensselaer demurred to the complaint of the plaintiff. The demurrer was overruled and judgment ordered in favor of the plaintiffs therein with leave to the defendant to answer within twenty days, upon the payment of twenty dollars costs. The order was entered on the 28th day of January, 1893, and a copy with notice of the entry thereof was served on the attorney for the defendant on the 3rd. 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 §§ 1010 and 1021 of the Code. The order for judgment was a sufficient decision under § 1010 Code. Eaton v. Wells, 82 N. Y., 576 ; Wood v. Lary, 124 N. Y., 83 ; 35 St. Rep., 53 .

p. 877

The order for judgment was final if the terms were not accepted and the judgment was regular under § 1021 for that reason.

The order should be affirmed, with costs and disbursements. Pratt, J., concurs; Dykmaüt, J., not sitting.