
    Henry Binder, Respondent, v. Caroline Robinson, Appellant.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Municipal Courts — Procedure — Judgment — Interlocutory judgment — On overruling demurrer — Entry; Sufficiency.
    Where a demurrer is overruled in the Municipal Court of the city of New York, proper practice requires the entry of an order, followed by the entry of an interlocutory judgment from which an appeal will lie.
    While an indorsement upon a summons in a Municipal Court action “Demurrer overruled with leave to plead ¿ver,” etc., signed by the justice, may be sufficient under Rule 3 of the court as a decision, it is not sufficient as a judgment; and no appeal lies therefrom as an interlocutory judgment overruling a demurrer.
    That the Municipal Court Act contemplates the entry of a judgment after trial of a demurrer is shown by the provisions for costs made in such case by section 334 of said act.
    
      Appeal by the defendant from an interlocutory judgment, rendered in favor of the plaintiff in the Municipal Court of the city of blew York, second district, borough of Manhattan.
    John F. Harrington, for appellant.
    Herman Weiss, for respondent.
   Per Curiam.

The defendant appeals from what he states in the notice of appeal as being “ the interlocutory judgment of this court overruling the defendant’s demurrer to the complaint.” There is no such judgment in the record. The summons is indorsed as follows: “ Demurrer overruled with leave to plead over, answer to be filed on or before Feb. 26 * ** and this is signed by the justice. This is far from being a judgment. An indorsement upon a summons in a Municipal Court action may be sufficient under Rule 3 of the Rules of Practice of the Municipal Court as evidencing a decision by the justice making it, but it is not sufficient as a judgment. Dalton v. Loughlin, 4 Abb. FT. C. 187. The proper practice is to enter an order overruling the demurrer, this to be followed by the entry of an interlocutory judgment from which an appeal would lie. Smith v. Ely, 46 Mise. Rep. 450. That the Municipal Court Act (L. 1902, ch. 580) contemplates the entry of a judgment on a trial by demurrer is shown by the provisions for' costs made in such a ease in section 334 of that act.

P'resent: Gildersleeve, Giegerich and Greenbahm, JJ.

Appeal dismissed, with ten dollars costs.  