Opinion
April 14, 1916.
William A. Parshall, for the appellants.
S.M. Cuddeback, for the respondent.
Section 976 of the Code of Civil Procedure, as amended now, allows an issue of law to "be brought on and tried at any term of court as a contested motion." The purpose of this appears in National Fark Bank v. Billings ( 144 App. Div. 536; affd., 203 N.Y. 556). Either side now has a right to notice the demurrer as a contested motion. For example, if a plaintiff saw fit to give a fourteen days' notice for a Special Term for Trials, plainly he could not thereby deprive a defendant, even after such notice, from serving a notice of motion and anticipating such trial by bringing up the demurrer as a contested motion. Otherwise, one litigant could frustrate the purpose of this amendment. Where the procedure is outside of the First and Second Judicial Districts, especially in counties like Orange, the judge assigned to sit may often at the same term, and on the same day, conduct equity trials, hear contested motions, as well as perform his varied work ex parte. Where there is no calendar, no trial fee paid the clerk, or other feature of a formal trial, the question if the demurrer is heard formally as a trial, or disposed of as a motion, is to be determined by the judge who makes the decision. ( Armstrong v. Corcoran, 166 App. Div. 583.) Judge SEEGER having expressly certified in the order, as well as in his opinion, that these demurrers had been heard and decided as motions, we see no reason to question that disposition and his granting only motion costs.
In National Park Bank v. Billings ( supra) Mr. Justice MILLER remarked: "In fact the Code nowhere requires the entry of an interlocutory judgment upon the decision of a demurrer" (p. 539). As motions are decided by an order, the County Court rightly declined to go to the useless formality of signing findings with a decision, as plaintiffs proposed. ( Shiffner v. Beck, 159 App. Div. 821.)
It follows that the orders of the County Court of Orange county should be affirmed, with ten dollars costs and disbursements, but with only one bill of costs to defendant for the three appeals. ( Woodworth v. Brooklyn Elevated R.R. Co., 29 App. Div. 1, 3.)
JENKS, P.J., STAPLETON, MILLS and RICH, JJ., concurred.
Orders of the County Court of Orange county affirmed, with ten dollars costs and disbursements, but with only one bill of costs to defendant for the three appeals. ( Woodworth v. Brooklyn Elevated R.R. Co., 29 App. Div. 1, 3.)