Majority
p. 1Horace W. Garland and Another, Respondents, v. Cortlandt S. Van Rensselaer, Appellant, Impleaded with Another.
Headnote
“ Decision” authorizing a, final judgment on a demurrer.An order for judgment upon a demurrer is a decision sufficient under section 1010 of the Code of Civil Procedure to justify an entry thereon of a final judgment.
Appeal by the defendant, Cortlandt S. Yan Rensselaer, from a judgment of the Supreme Court, entered in the office of the clerk of the county of “Westchester on the 1st day of March, 1893, and from an order entered in said clerk’s office on the 28th day of March, 1893, denying a motion to vacate said judgment.
Howard Allison and Isaac _Y. Miller, for the appellant.
Charles P. Cowles and Justus A. P. Cowles, for the respondents.
The defendant Yan 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 twenty days, upon the payment of twenty dollars 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
p. 2
and no answer was served within the time. The plaintiffs entered judgment upon the demurrer in their 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. The order for judgment was a sufficient decision under section 1010 of the Code. (Eaton v. Wells, 82 N.Y. 576 ; Wood v. Lary, 124 id. 83.)
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.
Pbatt, J., concurred; DyicMAN, J., not sitting.
Order affirmed, with costs and disbursements.
Cases cited
- Eaton v. Wells 82 N.Y. 576 p. 2