
    Ella E Smith, Respondent, v. Charles D. Thompson, Appellant, Impleaded with Alexander G. Nicholson and Others, Defendants.
    Second Department,
    March 15, 1907.
    Pleading — foreclosure -^-failure to allege assignment of bond is fatal — appeal from judgment on demurrer brings up the propriety of order on which it is founded.
    A complaint in foreclosure by the assignee of á mortgage which merely alleges ■ the assignment of the mortgage but is silent as to an assignment of the bond is subject to demurrer as frivolous, as the mortgage is a mere incident to the debt and an assignment thereof does not pass the debt.
    An order overruling a demurrer is not an intermediate order and may be reviewed on the appeal from the judgment entered thereon although the appeal does not specify an intention to review the order.
    An order sustaining or overruling a demurrer is not appealable as it is not one of . the orders enumerated in section 1347 of the Code of Civil Procedure and the . appeal is from the judgment only. ,
    Appeal by the defendant, Charles D. Thompson, from a judgment of the Supreme Court in favor of the plaintiff, entered- in the office of the clerk of-the county of Kings on the 15th day of June; 1906, overruling the said defendant’s demurrer to the complaint as frivolous.
    
      Mortimer M. Menken, for the appellant.
    
      J. Stewart Ross [Effingham L. Holywell with him on the brief], for the respondent.
   Miller, J.:

This is an appeal from a final judgment in a mortgage foreclosure action, entered pursuant to, the direction of the court, in the form-of an order in terms overruling a demurrer as frivolous. The complaint alleges the making of a bond and a mortgage to secure the payment thereof to the St. Regis Realty Company and the assignment of the mortgage to the plaintiff, but does not allege an assignment of the bond, and the point sought to be raised by the demurrer was that as the mortgage was an incident to the debt, an assignment of it did not pass the debt itself. The precise question was presented by demurrer in Manne v. Carlson (49 App. Div. 276). We desire to add nothing to the opinion of Mr. Justice Inoeaham in that case, and upon its authority hold that it was error to overrule the demurrer as frivolous.

A p>oint was made upon the argument that the only question presented by the appeal is whether the judgment complies with the order directing its entry, for the reason that the notice of appeal does not state any intention to review said order. If said order be an intermediate order,” and if the appellant could have appealed from it pursuant to section 1347 of the Code of Civil Procedure, it-is clear that the appeal from the judgment without specifying an intention to review the order only presents the question whether the judgment conforms to the order. (Code Civ. Proc. §§ 1301, 1316; Reese v. Smith, 95 N. Y. 645.)

An order sustaining or overruling a demurrer is not appealable because it is not one of the orders enumerated in said section 1347;. the appeal is from the judgment only. (Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514.) I do not refer to the many cases decided upon the authority of that case for the rule is so well settled that appellate courts now dismiss appeals from such orders without comment. To be sure, in such case it is held irregular tq enter a formal order, as the decision is not an order, but as bearing on the question here can it matter that the direction for judgment is made upon a summary application instead of at a trial % Section 247 of the Code of Procedure, from which section 537 of the Code of Civil Procedure was derived, merely provided a summary way to get the relief that formerly could be obtained only on trial. Whether the direction for judgment be in form, a decision or an order, its effect is the -same, i. e., a judgment, and if in form an order, it is not intermediate within the meaning of section 1301-of the Code of Civil Procedure, for nothing remained to-be done but to enter the judgment pursuant to its authority. (Becker v. Koch, 1041ST. Y. §94.) In Fox v, Matthiessen (155 R. Y. 177) the word “ intermediate,” as used in section 1316, was said to mean “ between the two extremes of service of summons and entry of judgment.” But that case dealt with an order denying a motion for a new trial made before the entry of judgment, and has no application to a. decision, even though in the form of an order, whose only effect is an authority to enter judgment. Such direction does not seem to he an order as defined by section 767-of the Code of Civil Procedure, because it is contained in the judgment, but the Code of Civil Procedure seems to treat a direction for judgment as an order (§ 1303), and it is held that it may be an order if in form one. (Elwood v. Roof, 82 N. Y. 428.) But the application is “for judgment'''’ (Code Civ. Proc. § 537), and I can see no reason why a formal order is indispensable or why the appeal from the judgment does not raise the propriety of the decision directing its entry merely because that decision happens to be a formal order. In questions of practice uniformity of rule is more important than soundness of reason for the rule. Our research, entirely unaided by any on the part of counsel, has failed to disclose-a single case even intimating that an appeal from a judgment entered for frivolousness, of a demurrer does not bring up for review the propriety of the direction for its entry. On the contrary, there are decisions to the effect that after entry of judgment the appeal lies from the judgment alone. So far as the question involved here is concerned, sections 247 and 349 of the Code of Procedure, as amended in 1852, were the same in substance as sections 537 and 1347, respectively, of the Code of Civil. Procedure; except that section 349 of the Code of Procedure,, as amended in 1851, expressly provided for an appeal from an order sustaining or overruling a démw'rer. That provision was omitted" from the Code of Civil Procedure, and in place of it there is a provision for an appeal from the interlocutory judgment. (Code Civ. Proc. § 1349.) The decisions under the Code of Procedure are not in harmony on all points, but there was no conflict, so far as I have been able to discover, upon the point that after entry of judgment the appeal was from the judgment alone. ( Witherhead v. Allen, 28 Barb. 661; Parker v. Warth, 5 Hun, 417.) There had been conflict on the point whether the appeal could be taken from the .order before entry of judgment, some cases .holding that there could be no appeal except when the order was conditional, i. e., interlocu-

tory, some that there could be no appeal in any case, and some that there could be an appeal in any case before judgment. (See Lewis v. Acker, 8 How. Pr. 414; Bauman v. New York Central R. R. Corp., 10 id. 218 ; Nolton v. Western R. R. Corp., Id. 97; King v. Stafford & Maxwell, 5 id. 30; Lee v. Ainslee, 1 Hilt. 277; Joannes v. Day, 3 Robt. 650 ; Harris v. Hammond, 18 How. Pr. 123.) It was held that a judgment could not be directed under said section 247 of the Code of Procedure where the notice of motion asked for an oi'der instead of & judgment. (Darrow v. Miller, 5 How. Pr. 247; Rae v. Washington Mutual Ins. Co., 6 id. 21.) It was even debated whether upon the determination of such an application the prevailing party was entitled to tax trial costs. (Roberts v. Morrison, 7 How. Pr. 396 ; Butchers & Drovers’ Bank of Providence v. Jacobson, 22 id. 470 ; Pratt v. Allen, 19 id. 450.) The distinction between an order striking out the pleading and one directing judgment for. the frivolousness of the pleading was pointed out by Judge Selden in Briggs v. Bergen (23 N. Y. 162), and the practice indicated by him was an appeal from the order in the one case, for the reason that the pleading when stricken out is no longer a part of the record, and the judgment goes by default, and in the other case an appeal from the judgment. The same distinction'was made in Webster v. Bainbridge (13 Hun, 180). So it will be seen that the decision in Elwood v. Roof (supra), followed in Charlton v. Webster (44 N. Y. St. Repr. 117), only settled a point upon which there had been a conflict, viz., that where a formal order was entered an appeal could be taken from it befo7'e the ent7'y of judgment, but that decision in no way disturbed the rule, upon, which the authorities appear to be harmonious, that, after the entry of judgment, the review is by appeal from the judgment alone, and Becker v. Koch (supra) is, therefore, decisive of the question.

I think the appellant has followed the practice indicated by the authorities. The point presented by the demurrer was fatal to the complaint, and the judgment should be reversed.

ITirsohberg, P. J. Woodward, Gaynor and Rich, JJ., concurred.

Judgment reversed and case remitted to the Special Term for trial and determination, costs to abide the final award of costs.  