
    Margaret J. Loos, Respondent, v. Annie Leahy, Appellant, Impleaded with John J. O’Brien and Michael J. Maher, Defendants.
    First Department,
    May 19, 1911.
    Practice—: demurrer -gentry of order.
    Under section 976 of the Code of Civil Procedure a demurrer can be disposed of as a contested motion; that is, by the entry of an order. McLaughlin, J., dissented., with opinion.
    Appeal by the defendant, Annie Leahy, from an order of the Supreme Court, made at the- New York. Special Term and entered in. the -office of the clerk of the county of New York on the -11th day of January, 1911, sustaining the plaintiff’s demurrer to several- affirmative defenses set forth in' the answer of the defendant Annie Leahy,, and denying the said defendant’s motion for judgment in her favor upon the pleadings. . .
    
      John M. Halsey, for the appellant.
    
      Alfred Gregory, for the respondent.
   Scott, J.:

. So far ■ as concerns the question of practice' we have fully approved the practice followed at Special Term, for reasons stated by Mr. Justice Miller .'in National Park Bank v. Billings (144 App. Div. 536). On the merits the order appealed from was right and must be affirmed, with ten dollars costs and disbursements.

Clarke, Miller and Dowling, JJ., concurred.

McLaughlin, J.:

The plaintiff demurred to affirmative defenses set up in the answer and gave notice that the issues of law raised thereby would be brought on and tried as a contested motion at Special Term, Part 1, and thereupon the defendant made a motion, returnable at the same time and place, for judgment on the pleadings under section 547 of the CocLe of Civil Procedure. The trial of the issue of law raised by the demurrer and the motion for judgment were heard together. The demurrer was sustained, motion for judgment denied, and an order entered to that effect, from which this appeal is taken. No decision was made or interlocutory judgment entered sustaining the demurrer. The appellant, however, does not ask for a reversal of the order on that ground. We would, therefore, affirm, the order appealed from without opinion were it not for the fact that in so doing our decision might be construed as approving the practice adopted.

The demurrer was not frivolous. It raised an issue of law (Code Civ. Proc. § 964) which had to be tried and disposed of in the manner pointed out in section 965 of the Code of Civil Procedure. After the trial a decision, in writing, had to be filed in the clerk’s office (Id. § 1010), the form of which is prescribed by section 1021 of the Code of Civil' Procedure. The learned justice who heard the motion reached the conclusion, as appears from his opinion, that under the provisions of section 976 of the Code of Civil Procedure the. demurrer could be disposed of as a contested motion, that is, by the simple entry of an order. This, for the reasons pointed out by me in opinion in National Park Bank v. Billings (144 App. Div. 536, 550) is not the proper practice. It matters not whether the trial of an issue raised by a demurrer be brought on by a regular notice of trial, or as a contested motion, a decision, in writing, must be filed, and the judgment to be entered thereby directed. Every issue raised by the pleadings in an action in the Supreme Court' and tried by the court- must be followed by a decision. However, as neither party complains of the practice, I vote for affirmance of the order.

Order affirmed, with ten dollars costs and disbursements.  