Opinion
May 19, 1911.
John R. Halsey, for the appellant.
Alfred Gregory, for the respondent.
So far as concerns the question of practice we have fully approved the practice followed at Special Term, for reasons stated by Mr. Justice MILLER in National Park Bank v. Billings ( 144 App. Div. 536). On the merits the order appealed from was right and must be affirmed, with ten dollars costs and disbursements.
CLARKE, MILLER and DOWLING, JJ., concurred.
The plaintiff demurred to affirmative defenses set up in the answer and gave notice that the issues of law raised thereby would be brought on and tried as a contested motion at Special Term, Part 1, and thereupon the defendant made a motion, returnable at the same time and place, for judgment on the pleadings under section 547 of the Code of Civil Procedure. The trial of the issue of law raised by the demurrer and the motion for judgment were heard together. The demurrer was sustained, motion for judgment denied, and an order entered to that effect, from which this appeal is taken. No decision was made or interlocutory judgment entered sustaining the demurrer. The appellant, however, does not ask for a reversal of the order on that ground. We would, therefore, affirm the order appealed from without opinion were it not for the fact that in so doing our decision might be construed as approving the practice adopted.
The demurrer was not frivolous. It raised an issue of law (Code Civ. Proc. § 964) which had to be tried and disposed of in the manner pointed out in section 965 of the Code of Civil Procedure. After the trial a decision, in writing, had to be filed in the clerk's office (Id. § 1010), the form of which is prescribed by section 1021 of the Code of Civil Procedure. The learned justice who heard the motion reached the conclusion, as appears from his opinion, that under the provisions of section 976 of the Code of Civil Procedure the demurrer could be disposed of as a contested motion, that is, by the simple entry of an order. This, for the reasons pointed out by me in opinion in National Park Bank v. Billings ( 144 App. Div. 536, 550) is not the proper practice. It matters not whether the trial of an issue raised by a demurrer be brought on by a regular notice of trial, or as a contested motion, a decision, in writing, must be filed, and the judgment to be entered thereby directed. Every issue raised by the pleadings in an action in the Supreme Court and tried by the court must be followed by a decision. However, as neither party complains of the practice, I vote for affirmance of the order.
Order affirmed, with ten dollars costs and disbursements.