Roberts v. Morrison

7 How. Pr. 396

• Court: New York Supreme Court
• Decided: January 15, 1853
• Status: Published

Opinion

Morris, Justice.

The language of a notice can not characterize the action of the court. The action of the court must control, and not the impression of parties or counsel, of the character of such action.

Section 249 of the Code establishes “ an issue of law arises upon a demurrer to the complaint, answer or reply, or to some part thereof.” Section 252 of the Code declares, “ a trial is the judicial examination of the issues between the parties, whether they be issues of law or fact.” Section 253 of the Code directs “ an issue of law must be tried by the court.”

Section 245 of the Code prescribes, “ a judgment is the final determination of the rights of the parties in the action.”

Section 247 of the Code is as follows: “ If a demurrer, answer or reply, be frivolous, the party prejudiced thereby, upon a previous notice of five days, m^y apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given thereon.”

Therefore in this case, whether the demurrer was heard by Justice Roosevelt out of court, or presiding at special term, the hearing was the trial of an issue of law, and his determination upon it, “ is a judgment, a final determination of the rights of the parties in the action.”

The plaintiff is entitled to costs of trial of an issue.