
    Charles Aber Dedrick and May Beckford Dedrick, Appellants, v. Port Jervis Light and Power Company, Respondent. Harry A. Quackenbush and Lillian B. Quackenbush, Appellants, v. Port Jervis Light and Power Company, Respondent. Samuel G. McDonald, Appellant, v. Port Jervis Light and Power Company, Respondent.
    Second Department,
    April 14, 1916.
    Practice — decision of demurrer as contested motion — Code Civil Procedure, section 976, construed — costs.
    Since the amendment of section 976 of the Code of Civil Procedure allowing an issue of law to be brought on and tried at any term of the court as a contested motion, either side may notice a demurrer as a contested motion.
    Even though a plaintiff has given fourteen days’ notice for Special Term for Trials, he does not deprive defendant of his right to serve a notice of motion and anticipate the trial by bringing up the demurrer as a contested motion. Where the defendant takes said course and the court disposes of the issue as a motion, the successful party is only entitled to motion costs.
    
      Where there is no calendar, no trial fee paid to the clerk, or other features of a formal trial, the question as to whether a demurrer is decided formally as a trial, or disposed of as a motion, is to be determined by the judge who makes the decision.
    Appeals by the plaintiffs in each case, Charles Aber Dedrick and another, Harry A. Quackenbush and another, and Samuel G-. McDonald, from orders of the County Court of Orange county, entered in the office of the clerk of said county on the 9th day of March, 1916, overruling defendant’s demurrers to the complaints in each case.
    On February fourteenth plaintiffs served a fourteen-day notice of trial of the issues of law in the three actions for the term of the County Court to be held on February twenty-eighth. Defendant on same day served a cross notice for the same time and place that the issue of law would be brought on ‘ ‘ for argument. ”
    On February twenty-eighth counsel accordingly appeared before Judge Seeger, who overruled the demurrer, his order reciting: “ It appearing that no note of issue was filed herein, that no calendar was made up for this term and that no trial fee was paid to the clerk herein.” His opinion also stated that “it must be considered that these cases were disposed of as motions, and the only costs that can be awarded are motion costs. Ten dollars costs are granted in each case.”
    He also declined to make findings with a written decision directing an interlocutory judgment. Plaintiffs appeal from this refusal as well as from the denial of twenty dollars costs as for trial of an issue of law and fifteen dollars costs before notice of trial in each action, as conditions to let defendant plead over.
    
      William A. Parshall, for the appellants.
    
      8. M. CuddebacJc, for the respondent.
   Putnam, J.:

Section 976 of the Code of Civil Procedure, as amended now, allows an issue of law to “be brought on and tried at any term of court as a contested motion.” The purpose of this appears in National Park Bank v. Billings (144 App. Div. 536; affd., 203 N. Y. 556). Either side now has a right to notice the demurrer as a contested motion. For example, if a plaintiff saw fit to give a fourteen days’ notice for a Special Term for Trials, plainly he could not thereby deprive a defendant, even after such notice, from serving a notice of motion and anticipating such trial by bringing up the demurrer as a contested motion. Otherwise, one litigant could frustrate the purpose of this amendment. Where the procedure is outside of the First and Second Judicial Districts, especially in counties like Orange, the'judge assigned to sit may often at the same term, and on the same day, conduct equity trials, hear contested motions, as well as perform his varied work ex parte. Where there is no calendar, no trial fee paid the clerk, or other feature of a formal trial, the question if the demurrer is heard formally as a trial, or disposed of as a motion, is to be determined by the judge who makes the decision. (Armstrong v. Corcoran, 166 App. Div. 583.) Judge Seeger having expressly certified in the order, as well as in his opinion, that these demurrers had been heard and decided as motions, we see no reason to question that disposition and his granting only motion costs.

In National Park Bank v. Billings (supra) Mr. Justice Miller remarked: In fact the Code nowhere requires the entry of an interlocutory judgment upon the decision of a demurrer” (p. 539). As motions are decided by an order, the County Court rightly declined to go to the useless formality of signing findings with a decision, as plaintiffs proposed. (Shiffner v. Beck, 159 App. Div. 821.)

It follows that the orders of the County Court of Orange county should be affirmed, with ten dollars costs and disbursements, but with only one bill of costs to defendant for the three appeals. (Woodworth v. Brooklyn Elevated R. R. Co., 29 App. Div. 1, 3.)

Jerks, P. J., Stapleton, Mills and Rich, JJ., concurred.

Orders of the County Court of Orange county affirmed, with ten dollars costs and disbursements, but with only one bill of costs to defendant for the three appeals. (Woodworth v. Brooklyn Elevated R. R. Co., 29 App. Div. 1, 3.)  