Caroline Smythe, Respondent, v. Edward J. Greacen, Appellant

Caroline Smythe, Respondent, v. Edward J. Greacen, Appellant. Demurrer—proper form of an interlocutory judgment overruling a demurrer to a complaint. Where a demurrer to a complaint is overruled with leave to the defendant to answer upon payment of costs, an interlocutory judgment providing, “ Ordered and adjudged that the demurrer of the defendant herein interposed be and the same is hereby overruled, and judgment is hereby rendered in favor of the plaintiff and against said defendant Edward J. Greacen as prayed for in the complaint, with thirty-five ($35.00) dollars costs, with leave, however, to the said defendant Edward J. Greacen to answer the amended complaint herein upon payment of said costs,” is technically wrong, and should be modified so as to provide that the démurrer is overruled, with costs, with leave to the defendant to answer upon payment of costs within twenty days, and that if he fails to do so final judgment may be entesed in accordance with the Code of Civil Procedure applicable in such cases. Appeal by the defendant, Edward J. Greacen, 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 2d day of Hay, 1904, denying the defendant’s motion to amend an interlocutory .judgment theretofore entered in the action. Vincent P. Donihee, for the appellant. [MAJORITY — Patterson, J.:] Patterson, J.: The defendant appeals from an order denying a motion to amend an interlocutory judgment. The action was for breach of promise of marriage, and the defendant demurred to the complaint.- The demurrer was overruled. The order directing interlocutory judgment recites as follows : “ Ordered and adjudged that the demurrer herein interposed be and the same is hereby overruled, with costs to the plaintiff, with leave to answer upon payment of costs to be taxed, and that interlocutory judgment be and entered accordingly.” After that a judgment was entered which provides as follows: “ Ordered and adjudged that the demurrer of the defendant herein interposed be and the same is hereby overruled, and judgment is hereby rendered in favor of the plaintiff and against said defendant Edward J. Greacen as prayed for in the complaint, with, thirty-five ($35.00) dollars costs, with leave, however, to the said defendant Edward J. Greacen to answer the amended complaint herein upon payment of said costs.” The provision in the judgment respecting the entry of judgment as prayed for in the complaint is technically wrong. The judgment ought to be modified so that it shall provide that the demurrer is overruled, with costs, with leave to the defendant to answer upon payment of costs within twenty days, and if he fails so to do, final judgment may be entered in accordance with the provisions of the Code of Civil Procedure applicable in such cases. The order appealed from should be reversed and an older entered in accordance with the views above expressed, with ten dollars costs and disbursements of the appeal to the appellant. Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements,- and order directed as stated in opinion. Sic.