
    John G. Uhler, Resp’t, v. William W. Ryer, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed October 26, 1888)
    
    1. Appeal—From decision on demurrer—How and when taken — Code Civil Pro., §§ 990, 1031, 1333.
    An appeal from a decision of a demurrer can now, since the amend" ment of sections 1031 and 990 in 1879, be only taken either from the interlocutory judgment pending the action entered as a final determination of the law issue tried, or from the final judgment rendered in the cause at its conclusion, either on the facts or under section 1533; for then either so much of the case or all of it is “ ended,” until reversed.
    3. Same—When appeal premature and unautorized.
    An appeal from an order entered on the trial of an issue of law, raised by demurrer to the complaint for insufficiency, wheie the order merely directs that plaintiff have leave to serve an amended complaint, no interlocutory or final judgment being entered in the cause, after said order, is premature and unauthorized.
    Appeal from an order entered on the trial of an issue of law, raised by demurrer to the complaint for insufficiency. The order merely directed that plaintiff have leave to serve an amended complaint within six days from the service of the order. Ho interlocutory or final judgment was entered in the cause after said order.
   Pitshke, J.

The demurrer to the complaint was well founded. The complaint was clearly insufficient on its face, for failure to show “ performance ” of the contract set out by the plaintiff and sued on, which was, on plaintiff’s part, to examine the books and accounts of the dissolved copartnership and report to this defendant the true showing of the partnership books and the interests of the copartners. Brown v. Colie, 1 E. D. Smith, 265; Baker v. Higgins, 21 N. Y., 397; Tooker v. Arnoux, 76 id., 398.

The hearing on the demurrer was a “ trial ” and a judgment should have been entered upon the decision contained or intended to be expressed in the order appealed from. This has not been done. The award of costs is, however, discretionary with the trial court on such a demurrer (Code Civ. Pro., §§ 965, 3232), where an issue of fact remains undisposed of. Such interlocutory costs are collectible (if absolute) in the manner provided by section 779, like motion costs. Adams v. Wood, 60 How., 288; and see Masters v. Barnard, 6 How. Pr., 113. Otherwise, they are to be treated as final costs, and to be collected as such Palmer v. Smedley, 13 Abb. Pr., 185, 186, the theory then being that the successful party on the demurrer is entitled to a final judgment on one issue, at least, and is, as to that, a prevailing party, and upon the ultimate judgment, entitled to its entry (thus far in his favor), with costs as to the plea or pleading demurred to, where the costs are not collectible under section 3232. This would be clearly so also where the decision on the demurrer determines the action without permission to continue it by way of amendment of the record.

The decision upon a demurrer, when liberty to amend is not given, is final. And also, if such liberty be given, and it is not acted on within the prescribed time, the decision becomes absolute and final. It is then a final determination of the whole rights of the parties as regards the cause of action, averment or defense, covered by the demurrer. Mora v. Sun M. I. Co,, 13 Abb., 308. The costs upon a demurrer “decided,” are not those of a motion, but of a “trial.”

Under section 1021 Code of Civ. Pro., as amended in 1879 (changing the rule laid down in Cambridge V. Bank v. Lynch, 76 N. Y., 516, the court on hearing a demurrer, should give a decision in form, after describing the hearing, “that the demurrer is sustained or overruled (as the case may be), and that the successful party have judgment on "the demurrer, with costs,” or without costs, or otherwise, according to the trial justice’s direction with respect to costs under section 3232; where an issue of fact remains undisposed of. Such decision, usually entered as an order, should further direct what relief said judgment shall award. U. S. Life I. Co. v. Jordan, 21 Abb. N. C. 330, 339. And an “interlocutory judgment ” must next follow, and be filed in the clerk’s office as a “postea.” Smith v. Rathbun, 88 N. Y., 665; Liegeois v. McCracken, 22 Hun, 69, 71; Dick v. Livingston, 41 Hun, 456.

The appeal from the hearing must be from either the interlocutory or the final judgment, entered pursuant to the order of the court determining the issue of law heard on the demurrer. Secs. 1021, 1222 and 1230.

An appeal from such order itself to the general term would be improper and unauthorized by said Code, and must, hence, be dismissed. Church v. Amer. R. T. Co., 15 J. & S., 562; Cambridge V. Bank v. Lynch, supra. An appeal from a decision of a demurrer can now, since the said amendment of sections 1021 and 990 in 1879, be only taken either from the interlocutory judgment pending the action entered as a final determination of the law issue tried, or from the final judgment rendered in the cause at its conclusion, either on the facts or under section 1222; for then either so much of the case or all of it is “ended,” until reversed.

The proper interlocutory or final judgment, based on the decided issue of law will be entered by the clerk as of course in cases coming under sections 1212 and 1213 Code Civ. Pro.; U. S. Life Ins. Co. v. Jordan, supra, (p. 339); and in other cases on an application to the special term under sec- . tian 1230, upon the law-decision rendered, to grant and give such relief as the applicant is entitled to at that stage of the case, so far as not already specified or allowed in the decision as filed. Smith v. Rathbun, 88 N. Y., 665, 666; see U. S. Life Ins. Co. v. Jordan, 21 Abb. N. C., 340, 341, and note id., 348, et seq. Either party, if dissatisfied with such judgment so obtained, has his remedy by appeal therefrom.

The order herein made represents the “ decision ” of the court on the demurrer. It may be amended or modified in the same court, either at the special or general term (75 N. Y., 483); but on an order upon the hearing of a demurrer, a judgment—interlocutory or final—must be entered, and an appeal can only lie from that. 15 Jones & Sp., 562; 16 N. Y., 515, 516.

The appeal herein was premature and unauthorized. No appeal has been taken from any interlocutory judgment in the case; and there is nothing before us to act on, or enabling us now to award appropriate relief to the parties, plaintiff and defendant. Further application on the order must be to the special term.

The appeal must, therefore, be dismissed, with costs.

Nehrbas, P. J., and McGowan, J., concur in the result.  