Robinson v. Hall , 42 N.Y. Sup. Ct. 214 ( 1885 )

Childs, J.:

The defendant demurred to the complaint herein upon the ground:

First. That the causes of action have been improperly united.

Second. That the complaint, in the second cause of action therein set forth, does .not state facts sufficient to constitute a cause of action.

Third. That the complaint, in the third cause of action therein set forth, does not state facts sufficient to constitute a cause of action.

The complaint contained five separate causes of action.

The issue of law raised by the demurrer was argued at the Monroe Special Term, and the justice presiding held and decided “ that said second cause of action contained in the complaint herein does not state facts sufficient to constitute a cause of action. The demurrer is sustained and the complaint must be dismissed as to said second cause of action, with costs to the defendant,” and directed judgment to be entered accordingly. Upon this order the defendant entered judgment dismissing the complaint as to said second cause of action and for forty-six dollars and forty-nine cents costs to the defendant.

The issues of law raised by the first and third grounds of demurrer remain undetermined, therefore no final judgment could be entered (Code of Civil Pro., § 1021; Masters v. Barnard, 6 How., 113; Belknap v. McIntyre, 2 Abb., 366; Bucking v. Hauselt, 9 Hun, 633; Brevoort v. Brevoort, 8 J. & S., 211), and' the entry of judgment for costs by defendant was irregular.

The remedy of the plaintiff was, therefore, by application to the court at Special Term, and not by an appeal to this court. (Johnson v. Carnley, 10 N. Y., 570; Ingersoll v. Bostwick, 22 id., 425.) On such an application the court could set aside the judgment irregularly entered and make such order as would properly dispose of tiio remaining issues raised by the demurrer, and, in case the demurrer should be overruled as to such issues, save to the defendant the right to answer upon such terms- as should be imposed. We are aware that the General Term has entertained an appeal and reversed in similar cases, but it does not appear that the attention of the court in those cases was called to the question here discussed. We are of the opinion that correct practice requires us to refuse to entertain this appeal, and to remit the parties to the Special Termj where their rights'can all be settled. We express no opinion as to the correctness of the decision sustaining the demurrer.

This appeal should, therefore, be dismissed, but as both parties are at fault in their practice, without costs and without prejudice to the right of plaintiff to apply to the court at Special Term for such relief as he shall be advised.

Bradley and Haight, JJ., concurred.

Appeal dismissed, without costs to either party, and without prejudice to the right of the plaintiff to apply at Special Term for such relief as he may be advised.