
    Michael J. Crowley, Respondent, v. Louis La Brake, Appellant.
    Third Department,
    November 15, 1911.
    Pleading—oral demurrer—practice — demurrer after answer—amendment at trial — terms—laches—motion and order — stenographer’s minutes.
    A demurrer in an action in the Supreme Court must be in writing. The issues of law raised by a demurrer must be disposed of before answer.
    An answer and demurrer are distinct pleadings raising different issues. A . defendant cannot at the same time interpose both to the same complaint, except that where more than one cause of action is stated he may demur to one and answer the other. But by answering he does not waive objections to the jurisdiction of the court, nor the objection that the complaint does not state a cause of action.
    Where, however, a defendant has answered he cannot interpose a demurrer as such, although he may move at trial for a dismissal of the complaint on the ground that it does not state a cause of action.
    Where a defendant having answered does not make such motion, but demurs orally, the court has no power to enter an interlocutory judgment sustaining the demurrer.
    Where a proposed amendment'to a complaint made at trial before a referee is merely technical, and in no way changes the cause of action, it should be allowed without terms.
    A plaintiff is not guilty of laches in moving to amend a complaint at Special Term so as to meet the objections raised by an oral demurrer interposed by a defendant who has already answered.
    Stenographer’s minutes not served as part of motion papers should not be considered by the court. But the error is harmless if the affidavits fully show the situation.
    Appeal by the defendant, Louis La Brake, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Franklin on the 16th day of August, 1911, giving the plaintiff leave to serve an amended complaint.
    
      Henry E. Miller, for the appellant.
    
      Andrew J. Hanmer, for the respondent.
   Houghton, J.:

After issue had been joined by the service of an answer the pártiés stipulated for a reference to hear and determine. On the cause coming on for trial before the referee the defendant orally demurred to the third cause of action on the ground that it did not state facts constituting a cause of action because it was not stated that the plaintiff paid the- note in question in pursuance of his guaranty or became the owner of the note before the action was commenced. The referee sustained the demurrer and directed the entry of an interlocutory judgment thereon, which was done. Counsel for plaintiff insisted that the complaint needed no amendment but asked, if the'referee thought, it did, to be permitted to insert appropriate words showing that the transactions took place before the commencement of the .action. After the entry of the alleged interlocutory judgment the plaintiff moved at Special Term to be permitted to serve an amended complaint amplifying thé same cause of. 'action which had previously been set forth, which the court granted upon payment of ten dollars costs only, and from which order the defendant now appeals.

The plaintiff was justified in ignoring the alleged interlocutory judgment founded upon an oral demurrer interposed at -the trial after answer. A demurrer upon which an interlocutory judgment can be founded must be in writing, and in case a defendant desires to demur to a complaint he must do so and have the issue of law thus raised disposed of before answer. (Code Civ. Proc. §§ 487, 499.) Answer and demurrer are distinct pleadings raising different issues (Cashman v. Reynolds, 56 Hun, 333), and a defendant cannot interpose both to the same complaint, except that where more than one cause of action is stated he may demur to one and answer to the other. (Code Civ. Proc. § 492.) By interposing an answer he does not waive the objection to the jurisdiction of the court or the objection that the complaint does not. state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 499.) Where he has answered, however, it is too late to interpose a demurrer as such, but on the cause coming on for trial he may mqve to dismiss the complaint or the particular cause of action on the ground that facts sufficient to constitute a cause of action are not stated. (Kelly v. Security Mutual Life Ins. Co., 186 N. Y. 16, 18.). The defendant did not make such a motion, but demurred orally, and an interlocutory judgment was directed to be entered.

The learned court at Special Term was correct in not imposing costs by reason of the pretended interlocutory judgment. The terms upon which the amendment was permitted were sufficient. The original complaint needed no amendment. But if it did the amendment was merely technical and in no way changed the cause of action, and. was one which the referee had power to grant, and which he should have granted, without the imposition of any terms whatever. The defendant’s claim of surprise was unwarranted, because his answer contained no general denial, but consisted of the affirmative defenses of payment and lack of consideration only.

Nor was the plaintiff guilty of laches. He made his motion as soon as he could reasonably be expected to comprehend the extraordinary practice which the defendant pursued.

The stenographer’s minutes were not served as part of the motion papers, and, strictly speaking, they should not. have been considered. Their consideration did no harm, however, for the affidavits fully showed the situation. The plaintiff "complied with the rule by serving a copy of the proposed amended complaint with his moving papers, and the defendant was thereby apprised of the amendment desired.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  