Lewis J. Wilkin et al., Appellants, v. Nehemiah Raplee, Respondent

Lewis J. Wilkin et al., Appellants, v. Nehemiah Raplee, Respondent. (Argued February 12, 1873; decided February 18, 1873.) Plaintiff obtained judgment upon" the ground of the frivolousness of the answer. Upon appeal to the General Term the judgment was reversed, with costs, with leave to plaintiff to demur, reply or proceed to trial. Defendant entered judgment for costs. Upon appeal to this court, held, that the judgment was irregular and unauthorized, and would have been set aside on motion, as the litigation was not terminated "and the proceedings were interlocutory; that the appeal was therefore simply from an order in substance refusing to give judgment on the ■ answer; that whether the sufficiency of the answer should be determined upon motion, or upon formal demurrer, was a matter of practice addressed to the discretion of the court andhot affecting a substantial right, and that the order was not appealable. Appeal from judgment of the General 'Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon an .order directing judgment on account of the frivolousness of the answer. • The General Term reversed the judgment, with costs of appeal, “ with leave to plaintiffs to demur, to answer or go to trial, as they may elect.” Upon this order, defendant entered judgment in form for costs, from which this appeal was taken.: David B. Prosser for the appellants. On the appeal to the General Term, the only question presented was, whether the answer constituted a good defence. (Martin v. Kanouse, 2 Abb., 827; East River Bank v. Rogers, 7 Bosw., 494.) Brands Kernam, for the respondent. Mo consideration for defendant’s promise is alleged, and none can be implied from the facts stated. (Manrow v. Durham, 3 Hill, 584; Draper v. Snow, 20 N. Y., 331; 3 R. S., 5th ed., 221, § 2, sub. 2, as amended by chap. 464, Laws of 1863.) An answer which denies the allegation of the complaint, which is essential to defendant’s liability, is not frivolous. (Davis v. Potter, 4 How. Pr., 155; Nichols v. Jones, 6 id., 355.) Hpon the facts alleged in the answer, defendant is the surety of Hollister. (Brewster v. Silence, 40 Seld., 215; Draper v. Snow, 20 N. Y., 337; Manrow v. Durham, 3 Hill, 591; Brown v. Curtiss, 2 Com., 229.) If the creditor collude with the principal debtor to cast the debt on the surety, the latter is discharged. (Remsen v. Beekman, 25 N. Y., 552-7; Manch. Iron Manf. Co. v. Sweeting, 10 Wend., 162, 165.) [MAJORITY — Allen, J.] Allen, J. The appeal cannot be sustained. Although a judgment was entered for costs against the plaintiffs, it was unauthorized and irregular, and the court below would have vacated it on motion. The judgment of the Special Term was reversed at General Term, and the motion for judgment denied. That was the effect of the order and decision, but no judgment, was given against the plaintiffs. The reversal was with costs, but leave was given to the plaintiffs to demur, to answer (that is, to reply), or go to trial, as they might elect. The proceeding was interlocutory, the litigation was not terminated, and the costs could only be collected as other interlocutory costs are collected. A judgment cannot be perfected for costs of this character, and is only authorized at the final termination of the action as to some or all the parties. (Brown v. Leigh, MS. opinion by Peckham, J., Dec. 2, 1872.) A judgment is defined to be “ the final determinatioü of the rights of the parties in the action.” (Code, § 245.) This entry, called a judgment, does not appear to be such a determination. The appeal, then, is simply from an order in effect refusing to give judgment for the reason assigned; -not disposing of the merits of the answer, but leaving its sufficiency to be determined upon a demurrer, or its truth upon a trial of the issues, as the plaintiffs might elect. The order does not affect a substantial right. Indeed, no right is involved. Whether the sufficiency of the answer shall be determined upon a non-enumerated motion, upon a notice of five days, or upon a formal demurrer, is a matter of practice, and addresses itself very much to- the discretion of the eourt. It is for the court to adjudge, upon an inspection of the answer, whether its validity shall be determined at once upon the reading, or after a more formal and deliberate consideration, and in the ordinary and usual course of procedure. Had the plaintiffs demurred to the answer, and the Supreme Court, by order, sustained or overruled the demurrer, no appeal could have been taken to this court from the order. (People v. Benedict, 47 N. Y., 667.) The order appealed from does not, even in effect, pass upon the sufficiency of the answer, but merely denies the motion for judgment upon the single ground of frivolousness, giving the plaintiffs leave to take exception to it by answer or otherwise. The order is not final upon any question. It does not affect a substantial right, for the law does not confer upon suitors an absolute right to a summary judgment upon a motion, and the plaintiffs’ right of action is not affected by the order. When the Code says that the party may apply for judgment by reason of the frivolousness of an answer, it does not give him the right to a determination as to the sufficiency of the answer upon that motion, but upon a demurrer; and in the usual course of procedure he may demand and have the judgment of the court upon the sufficiency of the defence sought to be interposed. This complaint is defective, and the defendants upon this motion can have the benefit of that objection. ( Van Alstyne v. Friday, 41 N. Y., 174.) The difficulty, however, is that the answer supplies the defects of the complaint, and, while the answer is clearly bad, it may be doubtful whether the plaintiffs, while asking for judgment because of the palpable badness of the answer, can avail themselves of any of the averments to cure the defects of their complaint. But, as the order is not appealable, this court cannot pass upon the merits of the pleadings. The appeal must be dismissed, with costs. All concur. Appeal dismissed.