
    Edward J. Selley and William Martin, Plaintiffs, v. The Irish Industrial Exposition and Amusement Company, Limited, Defendant.
    (Supreme Court, New York Special Term,
    February, 1907.)
    Judgment: Rendition — At particular stages of the action — Judgment on demurrer — Interlocutory and final judgment; Entry — What constitutes. Final judgment should not be entered after the trial of the issues of law arising upon a demurrer to a counterclaim where issues of fact remain to be tried. Filing with the clerk an order sustaining a demurrer to a counterclaim signed by the judge without the order being signed by the clerk, does not constitute an entry thereof, nor is the order an interlocutory judgment; and final judgment entered pursuant thereto will be vacated.
    Motion to set aside and vacate a judgment.
    Bushby & Berkeley, for the motion.
    Edward C. Dowling, opposed.
   Giegerich, J.

This is a motion to set aside and vacate a judgment entered January 28, 1907, on the grounds: (1) That the plaintiffs’ time to reply had not expired at the time the judgment was entered; (2) that the judgment was entered without notice to the plaintiffs and without application to the court; (3) that the entry of the judgment was irregular and void, and the affidavit of the attorney upon which the same was entered was untrue; (4) that the judgment-roll attached to the said judgment does not contain any paper bearing the genuine signature -of Mr. Justice Greenbaum. From the papers submitted it appears that in the answer a counterclaim was set up for a sum of money only. To this counterclaim a demurrer was interposed on ilie ground that it appeared on the face of the counterclaim that it did not state facts sufficient to constitute a cause of action. This demurrer was heard by Hr. Justice Greenbaum; and, on or about the 5th day of November, 1906, he signed an order in which he adjudged “that said demurrer be and the same hereby is overruled, with twenty dollars costs, and with leave to the plaintiffs to serve a reply to the counterclaim within twenty days of the date hereon on the payment of said costs to the defendant’s attorneys.” It further appears that this order and notice of the entry thereof were served upon the plaintiffs’ attorneys on or about November 6, 1906, and that on the same day or the day before the order itself, without any other paper, ivas filed with the clerk of Special Term, Part IV, where the demurrer was argued, and is called the interlocutory judgment; but it is clear that the clerk of this court did not at that time sign thé said paper or afiix his name thereto, as required by section 1236 of the Code of Civil Procedure, which provides that “ Every interlocutory judgment or final judgment shall be signed by the clerk and filed in his office, and such signing and filing shall constitute the entry of the judgment.” The plaintiffs have failed to distinguish between the entering and filing of a paper, although there is a material difference between the two. Lent v. N. Y. & M. R. Co., 130 N. Y. 504, 509. The case of Finck v. Wallach, 109 App. Div. 718, relied upon by the defendant, relates solely to filing, and does not in any way relate to the entry of a judgment or order. Without considering any other objections on this score, therefore, it must be held that, the paper relied upon as an interlocutory judgment was in fact not such.

Another reason why the motion to set aside the final judgment should be granted is that the case was not in any position for the entry of a final judgment at all, wholly irrespective of any question of the regularity of the earlier proceedings. In addition to the counterclaim the answer contained denials of various allegations of the complaint; and, therefore, issues of fact remained undisposed of after the issues of law raised by the demurrer to the reply had been determined. Section 1221 of the Code of Civil Procedure provides that “ Where one or more issues of law, and one or more issues of fact, arise in the same action, and all the issues have been tried, final judgment upon the whole issue” may be taken, and prescribes the several methods to that end. So, likewise, section 1222 provides for a final judgment upon an issue of law where no issue of fact remains to be tried. From these provisions it is plain that the statute does not contemplate the entry of a final judgment in a case like the present, and that to permit such practice would lead to the result of having more than one final judgment in the same action. These views require the granting of the motion and render it unnecessary to consider the other objections made to the regularity of the judgment. Motion granted, with ten dollars costs to abide the final event of the action.

Motion granted, with ten dollars costs to abide final event of action.  