
    William G. McCrea, Plaintiff, v. Thomas B. Robinson et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1906.)
    Judgment—Rendition — At particular stages of action — Judgment or demurrer — Decision on demurrer.
    Where the Appellate Division sustains a demurrer to a complaint which the Special Term had overruled, but gives no direction" for the final or interlocutory judgment, and the clerk enters an interlocutory judgment, simply reversing the judgment appealed from and sustaining the demurrer with leave to amend, no direction for final judgment having been given, a motion by the defendants who demurred, for an order directing judgment dismissing the complaint against them, is proper and should be granted.
    Motion for an order directing judgment dismissing the complaint as against certain defendants.
    Appell & Taylor, for motion.
    Benjamin F. Gerding, opposed.
   Giegebioh, J.

This motion is made by certain of the defendants for an order directing judgment dismissing the complaint as against them. They demurred to the complaint and such demurrer was overruled at Special Term, but sustained on appeal to the Appellate Division. The order of reversal that was entered contained no direction as to the final or interlocutory judgment to be entered thereon. The interlocutory judgment entered by the clerk, without application to the court, followed the language of the order of reversal, simply adjudging that the judgment so appealed from be reversed and that the demurrer be sustained, with leave to the plaintiff to amend the complaint within twenty days from service of said order on payment of the sum specified as taxed costs. On -behalf of the plaintiff it is urged that before the relief asked for in this motion can be granted the defendants should move for an amendment of the interlocutory judgment so as to direct the entry of final judgment on failure of the plaintiff to comply with the terms imposed. Upon such a motion, however, it might be objected with equal force that the interlocutory judgment must be preceded, under the provisions of section 1021 of the Code of Civil Procedure, by a decision directing the form of interlocutory judgment to be entered thereon. The section referred to is as follows: ’ “ Section 1021. Decision of court or report of referee, upon trial of demurrer. The decision of the court, or the report of a referee, upon the trial of a demurrer, or upon the trial of the issues of fact or law, where- a non-suit is granted, must direct the final or interlocutory judgment to be entered thereupon, and in any such ease it shall not be necessary for the court or referee to make any finding of fact. Where it directs an interlocutory judgment, with. leave to the party in fault to plead anew or amend, or permitting the action .to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to, comply with any of the directions given or terms imposed.” The theory of the relation of an interlocutory judgment to • a'decision is manifest and is that such interlocutory judgment must find its basis in the decision. It has come to be a somewhat common practice upon the decision of a demurrer to enter an order instead of a decision, properly speaking, that is, a decision containing formal conclusions of law, and such practice is recognized, although not approved of, by good authority. See 2 Abb. Hew Pr. & Forms, 772. But whether under the name of an order or decision, there must be some adjudication of the court preceding the interlocutory decree, and out of which every part bf the interlocutory decree can be drawn, that is, every provision of the interlocutory decree must be authorized by the prior adjudication. In this case the Special Term erroneously overruled the demurrer. The Appellate Division reversed that decision and sustained the demurrer and gave leave to tire plaintiff to amend on terms. If that disposition of the matter had been made in the first instance by the Special Term it would not have been obligatory under the provisions of the first portion of section 1021 at that time to have directed the form of final judgment, because a nonsuit was not granted. Such a disposition required an interlocutory judgment to be entered and in effect directed it. That brings the ease within the latter portion of section 1021, which provides that in such an event the decision may (not must, as in the earlier portion of the section) also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed. Ho such direction for final judgment having ever been given, the practice of the defendants’ attorney is' proper in now moving for such direction. Code Civ. Pro., § 1230; Liegeois v. McCrackan, 22 Hun, 69.

Motion granted, with ten dollars costs.  