
    The Hecla Consolidated Gold Mining Co., Resp’t, v. William L. O’Neill, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 17, 1893.)
    
    1. Judgment — Demurrer.
    Where the interlocutory judgment sustaining a demurrer to the answer with leave to amend on terms directs that, in default of such amendment, judgment be entered for the relief demanded in the complaint, the plaintiff, upon such failure to amend, may enter judgment without further direction by the court, although the action is an equitable one.
    2. Costs — Appeal.
    An objection to the taxation of costs cannot be raised on appeal from the final judgment, for the reason that the proceedings upon the taxation form no part of the judgment roll; if the costs were inserted without taxaati >n it is simply an irregularity on the part of the clerk which must be corrected upon motion.
    Appeal from a final judgment taken on demurrer, without leave of the court, and entered as of course by the clerk in like manner as on a default as if the action were on contract, while, in fact, the action is an equitable one against a trustee for specific performance.
    
      W. L. O Neill, for app’lt; J. N. Hayes, for resp’t.
   Van Brunt, P. J.

This action was commenced to procure equitable relief against the defendant. A demurrer was interposed to the defendant’s answer, which was duly sustained, and an order and interlocutory judgment were duly entered, directing the entry of final judgment for the relief demanded in the complaint, with costs, unless the defendant should serve an amended answer and pay certain costs within ten days. The defendant appealed from the interlocutory judgment so entered to the general term, and subsequently, the defendant having failed to serve an amended answer, or pay the costs, or stay the plaintiff pending his appeal from the interlocutory judgment, a final judgment was'entered for the relief demanded in the complaint, and from this final judgment this appeal was taken.

The grounds which are presented upon this appeal are: First, that the clerk had no jurisdiction to enter a judgment without an application having first been made to the court; and, second, that the costs which were inserted in the final judgment were not taxed or adjusted by the clerk in any way as required by the provisions of the Code. It is urged that, this being an equitable action, and not one on contract, the plaintiff was not entitled, as of coarse, to final judgment, without the direction of the court for such judgment against the defendant upon an alleged default; and it is claimed that there was in fact no such direction; and, farther, that there was no direction that the plaintiff was entitled to costs. Upon an examination of the record, it will appear that these points are manifestly not well taken. Upon the trial of the demurrer, there was an application for judgment because of the insufficiency of the answer; and the court, having held the answer to be insufficient, by sustaining the demurrer, directed an interlocutory judgment by which the demurrer was sustained, with leave to amend upon terms, and, in default of such amendment, directed judgment to be entered for the relief demanded in the complaint, with costs as taxed. This seems to have been a compliance with the provisions of the Code regulating the practice in cases "of this description.

The point as to the taxation of costs cannot be raised upon appeal from the final judgment, for the simple reason that the proceedings upon the taxation of costs formed no part of the judgment roll; and, if the costs were inserted without taxation, it was simply an irregularity upon the part of the clerk, which must be corrected upon motion. There would seem, therefore, to be nothing raised upon this appeal which in any way interferes with the validity of the final judgment as entered. The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.  