
    SUPREME COURT.
    Sarah E. Wightman agt. Robert H. Shankland and Eleazer Hannan.
    Where the answer of the defendant is sufficient to bar the action, and it is demurred to, and the demurrer is determined iu favor of the answer, the proper judgment to be entered is a final judgment that the plaintiff take nothing by his complaint, and a dismissal thereof, although there may be issues of fact joined in the cause.
    
      But where the matter stated in the answer is demurred to, and it is determine^ by the court that it is such matter as the defendant has a right to state as a defence, though not constituting a bar to the action, and “judgment for defendant with leave to plaintiff to withdraw the demurrer in twenty days, on payment of costs,” is directed; the defendant is irregular in entering a judgment for costs, where the terms are not complied with by the plaintiff. The decision should stand as an order overruling the demurrer. What remedy the defendant has for his costs is not very clear.
    It is now well settled, that matter may, under certain circumstances, be stated in an" answer by way of defence which will not constitute a bar, but such an answer cannot be demurred to, or if demurred to it will be overruled.
    
      Niagara General Term, September, 1859.
    Present, Greene, P. J., Marvin and Davis, Justices.
    
    Appeal from j udgment entered upon demurrer to answer. The action was to recover damages for a libel. The matter complained, of as libelous is set forth in the complaint with innuendoes..
    The defendants denied the complaint generally; and then, for a second and further answer, alleged that the facts embraced in the supposed libel were substantially true, to wit: (then follow varioús allegations of facts, which, however, do not-entirely meet and cover all the libelous matter as stated in the complaint). The plaintiff demurred to this answer on the ground that it was “ insufficient in law to bar the plaintiff’s chuse of action, or any part thereof.”
    The issue raised by the demurrer was tried, before Justice Grover, at the circuit and special term, held in Cattaraugus county, in July, 1858, and the court ordered judgment for defendants, with leave to the plaintiff to withdraw the demurrer, &c., in twenty days, on payment of costs. The defendants entered an order “ that the said demurrer be, and the same hereby is overruled, and the defendants have judgment thereon. And it is. further ordered, that the plaintiff have leave to withdraw her demurrer in twenty days from the service of a copy of this order, on payment of costs.”
    The plaintiff’s attorney took no action in the case,- and the record or papers show another order or judgment, entered in October, with the caption, “judgment signed, October 8th, 1858.” After reciting the previous proceedings in the case, and that twenty days had elapsed, and that the demurrer had not been withdrawn nor the costs paid, it is declared, “ now, on motion of Lamb & Bolles, attorneys for the defendants, it is adjudged that the defendants recover of the plaintiff the sum of thirty-seven dollars and sixty-five cents, for their costs and disbursements in this action,” This is signed by the clerk.
    At a special term held in Erie county, in November, 1858, present Justice Marvin, the plaintiff’s counsel moved that the judgment be set aside for irregularity. It was ordered that the judgment be set aside, that the plaintiff have leave to withdraw her demurrer upon payment of costs, within twenty days, that if she failed to do so, the defendants should be at liberty to have the costs of the action adjusted and to enter final judgment, disposing of the whole case in their favor. The plaintiff not availing herself of the leave to withdraw the demurrer, &c., the defendants entered final judgment, dismissing the complaint, and that the defendants recover their costs and disbursements, $37.52, and that they have execution therefor.
    From this judgment the plaintiff appealed to the general term.
    A. G. Rice, for plaintiff.
    
    D. H. Bolles, for defendants.
    
   By the court—Marvin, Justice,

It is quite clear that this judgment cannot be sustained, but what should be done with it is not quite so clear. I was led into error by the papers, and the positions of counsel at the Erie Movember special term, 1858, as to what had actually been decided by brother Grover, upon the trial of the issue raised by the demurrer. I understood, and so my written opinion distinctly shows, that the court, in deciding the issue raised by the demurrer, decided that the answer stated facts, which constituted a complete lar to the action. And I held, upon this assumption, that the judgment entered by the defendants should have been final, disposing of the entire case. It was then argued by the counsel for the plaintiff, that, as there was an issue of fact, no judgment could be entered until such issue had been tried. In answer to this position, I remarked, “this depends upon the nature of the issue. If there is an issue of fact, and also an issue of law, and the latter is first tried, and the decision upon it is in favor of the defendant, but the question decided does not bar the action, the issue of fact must be tried before the judgment roll is made up, but if the defendants’ plea in answer is sufficient to bar the action, and is demurred to, and the demurrer is determined in favor of the answer, the judgment, that the plaintiff take nothing by his complaint, is the proper judgment, though there may be issues of fact joined in the cause. The reason of this is quite obvious. If the defendant states, in one answer, facts which constitute a bar to the action, and these facts are admitted by the demurrer, there can be no necessity of trying any of the issues of fact, as the defendant must have judgment upon the whole record.” (See Gra. Pr. 760 et seq., and cases there cited.)

Thus is seen the ground upon which my decision proceeded, I supposed that Justice Grover had decided that the matter of the answer constituted a bar. I was not reviewing his decision. The question before me was a question of practice, whether ■the defendants’ attorney had followed out the decision of the court. We have now published, for the first time, the opinion of Justice Grover, delivered at the time he decided the issue raised by the demurrer, and it is now entirely clear that he did not understand or decide that the matter stated in the answer constituted a complete defence—bar to the action. But he regarded it as matter which the defendants had a right, in the action of libel, to plead or state in an answer. He, therefore, overruled the demurrer, furnishing a brief direction, “judgment for defendants, with leave to plaintiff to withdraw the demurrer, &c., in twenty days, on payment of costs.” Upon this direction, the attorneys for the defendants entered the judgment for costs, without dismissing the complaint. They called it a judgment. Its caption is, “judgment signed October 8th, 1858.” The language is, “ it is adjudged that the defendants recover of the plaintiff the sum of $37.65, for their costs and disbursements in this action.” This judgment or order I set aside, and very properly, as I still think, regarding it as a judgment, and not simply as an order. I know of no practice justifying such a judgment. The Code declares, “a judgment is the final determination of the rights of the parties in an action.” (Section 245.) By section 400, “ every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” By section 349, an appeal is given from an order, “ when it sustains or overrules a demurrer.”

The defendant’s attorneys should not have attempted to enter a judgment in this case, unless they understood the court as deciding that the matter pleaded constituted a complete bar, and then the judgment should have been final, dismissing the complaint, so that the plaintiff could have appealed from it as a judgment, and if affirmed on appeal, then could appeal to the court of appeals. Understanding that the court at special term had so decided, I directed the judgment to be put in the form of a final judgment. In this I erred from a misapprehension of what the special term had actually decided. I ought simply to have set the judgment aside, leaving the order entered at the special term, overruling the demurrer, and giving the plaintiff leave to withdraw it on payment of costs, &c., to stand. I will not now stop to inquire what the remedy of the defendants was for their costs.

It is now well settled that matter may, under certain circumstances, be stated in an answer by way of defence, which will not constitute a bar, and, of course, if that is allowable, such answer cannot be demurred to, or, if a demurrer is interposed, it will be overruled. (See Houghton agt. Townsend, 8 How. Pr. R. 441; Bush agt. Prosser, 1 Ker. 352 ; Howard's Code, and cases cited under section 149; and section 164, relating to actions for libel or slander.)

By the Code as amended in 1857 (section 153), the plaintiff may demur to an answer containing new matter, when upon its face it does not constitute a counter-claim or defence.” It is added, and the plaintiff may demur to one or more of such defences or counter-claims, and reply to the residue of the counter-claims.” Prior to 1857, the language was, the plaintiff may, in all cases, demur to the answer for insufficiency, stating in his demurrer the grounds thereof.” As I understand the Code (See Houghton agt. Townsend, supra), little or no change was effected by this amendment of 1857, as I held that any new matter, that was available as a partial defence, might be pleaded, unless it was matter that could be given in evidence under a denial answer, as evidence in mitigation of damages in assault and battery, &c., &c. By the amendment of 1857, however, the language “ for insufficiency ” is omitted, and now he may demur to the answer when upon its face it does not constitute a counter-claim or defence, so that the question is, does the new matter pleaded constitute a counterclaim or defence. In other words, is it matter that may be pleaded in an answer ? Hot, is it matter that will bar the action. If it is matter that may be pleaded by way of defence, any demurrer to it must be overruled. The amendment of 1857, by leaving out the words for insufficiency,” have probably removed any doubt previously existing as to the proper construction to be given to the word defence. This word is left to stand with the construction previously given to it.

I notice in this case, though the action was commenced after the amendment of 1857, that the pleader has demurred on the ground that the answer is insufficient in law to bar the plaintiff’s cause of action or any part thereof But, as already stated, I did not assume at the special term to review the decision of Justice Grover. 'The question before me was one of regularity. The decision of Justice Grover is not now before us, as he did not, as the case is now understood, decide that the matter stated in the answer barred the action. Such judgment has been entered in pursuance of my directions made at a special term, upon a motion to set the judgment entered aside. All the proceedings, from and including the entry of the judgment founded upon the decision of Justice Grover, have been irregular and should be set aside. There has been no decision authorizing such a judgment.

It is not a case for reversing the judgment. There should have been an appeal from the order made by me, or some course should have been taken to put the court, at a special term, in possession of the facts as they really existed. Unless the respective attorneys actually understood that Justice Grover decided that the answer constituted a bar to the ac: tion, they must, upon reading my opinion, have discovered that I had fallen into error.

I think the judgment entered upon the decision of Justice Grover and all subsequent proceedings should be set aside, upon the ground of irregularity.  