Carlotta Nillson, Appellant, v. Walter N. Lawrence and Others, Defendants, Impleaded with American Play Company, Respondent

Carlotta Nillson, Appellant, v. Walter N. Lawrence and Others, Defendants, Impleaded with American Play Company, Respondent. First Department, December 15, 1911. Practice — demurrer overruled with leave to plead over — extension of time to plead pending appeal improper—stay. Where a demurrer to a complaint is overruled, with leave to the defendant to plead over, it is improper for the court, upon an ex parte motion of the defendant, to extend the defendant’s time to answer until after the decision of an appeal taken by him from the order overruling the demurrer. It seems, that the proper practice is for the defendant to refuse to plead over, and then, after having appealed, to apply on notice for a stay of proceedings pending appeal. Appeal by the plaintiff, Carlotta Nillson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1911. B. Gerson Oppenheim,, for the appellant. Melville H. Cane, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Plaintiff appeals from an order denying her motion to vacate an ex parte order extending the time of defendant. American Play Company to answer the complaint. The said defendant demurred to the complaint. On plaintiff’s motion the demurrer was overruled, leave being given to said-defendant to withdraw its demurrer and answer within ten days. Before the ten days had expired defendant appealed to the Appellate Division and applied for and obtained an ex parte order extending its time to answer “ to and including ten (10) days after the determination by the Appellate Division, First Department, of the appeal ” from the order overruling the demurrer. It was this order which plaintiff seeks to vacate. In our opinion the motion to vacate should have been granted. The order overruling the demurrer, under the practice now authorized and adopted in the present case, stands in the place of and is to be treated as an interlocutory judgment, ■ which determines the issue of law raised by the pleading and the demurrer. It is an adjudication and in effect a judgment leaving to the defeated party the option of adopting one of two courses. He may stand on his demurrer and appeal from the order overruling it or may withdraw the demurrer and plead, over, but one or the other he must do. An order such as defendant obtained operates in one point of view as an amendment of the Order overruling the demurrer, and in another point of view as a stay of proceedings under that order pending an appeal. It can be sustained hi neither view. In either the opposite party was entitled' to notice. And even if she had had notice the order would have been improper. An indefinite extension of time to answer over would have been unauthorized even if embodied originally in the order overruling the demurrer. ■ The proper course for a demurrant to pursue who wishes to appeal from the order vacating his demurrer is to refuse to plead over, and after having appealed, to apply upon notice' for a stay of further proceedings pending appeal, Whereupon the court, if it considers that the motion should be granted, will fix such terms and conditions as the Code prescribes and as seem reasonable. It is true that by following this course the demurrant loses the option to plead over given by the original order, but this is the necessary result of his refusal to avail himself of the option, and he runs little risk in doing so, because the cases are rare in which an appellate court, even if it affirms the order overruling the demurrer, does not grant leave to plead over upon proper terms. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J., Laughlin, Clarke and Miller, JJ.,' concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.