Oesterreiches v. Jones

52 N.Y. Sup. Ct. 246, 10 N.Y. St. Rep. 356

• Court: New York Supreme Court
• Decided: July 15, 1887
• Status: Published

Opinion

Barnard, P. J.:

Tbe complaint is framed to recover damages of tbe defendant for injuries inflicted by tbeir neglect, tbe averment being tbat they are tbe owners of a building, a part of wbicb is rented to tbe plaintiff, and tbat they opened a place in tbe roof and carelessly left it unprotected, whereby tbe rain injured tbe plaintiffs goods. Tbe answer took issue upon tbe facts and set up a counter-claim. Tbis counter-claim was based upon an averment tbat tbe plaintiff bad, without tbe defendants’ consent, made a structure upon tbe roof, wbicb was against tbe city ordinance, and that tbe defendants were compelled to repair it at an expense of $250. To tbe counterclaim tbe plaintiff demurred and bad judgment thereon in his favor. Tbe plaintiffs entered up judgment thereon, with costs. Tbe order at Special Term set aside tbis judgment.

Tbe moving papers sufficiently indicated tbe irregularity. The entry of a judgment while tbe issues of fact were undisposed of was given as tbe reason for tbe motion, wbicb the plaintiff’s attorney says be is advised and believes to be irregular. It was irregular. This was so held in Robinson v. Hall (35 Hun, 42 N. Y. Sup. Ct., 214) where a portion of tbe complaint was held bad on demurrer. Judgment was entered thereon, and tbe court at Special Term set it aside as irregular, citing many authorities. The same thing was held in Armstrong v. Cummings (22 Hun, 570). Tbe demurrer in tbis case was to one defense in an answer The demurrer was sustained, and the court held that the costs were not. capable of assessment. They were interlocutory and not final, and could not be enforced until the final judgment was rendered.

Order affirmed, with costs and disbursements.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment and order affirmed, with costs.