Smyth v. Graecen

89 N.Y.S. 111, 96 A.D. 182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1904
• Status: Published

Opinion

PATTERSON, J.

The defendant appeals from an order denying a motion to amend an interlocutory judgment. The action was for breach of promise of marriage, and the defendant demurred to the complaint. The demurrer was overruled. The order directing interlocutory judgment recites as follows:

“Ordered and adjudged that the demurrer herein interposed be, and the same is hereby, overruled, with costs to the plaintiff, with leave to answer upon payment of costs to be taxed, and that interlocutory judgment be, and is hereby, entered accordingly.”

After that a judgment was entered which provides as follows:

“Ordered and adjudged that the demurrer of the defendant herein interposed be, and the same is hereby, overruled, and judgment is hereby renderd in favor of the plaintiff and against said defendant, Edward J. Graecen, as prayed for ,in the complaint, with thirty-five ($35) dollars costs, with leave, however, to the said defendant, Edward J. Graecen, to answer the amended complaint herein upon payment of said costs.”

The provision in the judgment respecting the entry of judgment as prayed for in the complaint is technically wrong. The judgment' ought to be modified so that it shall provide that the demurrer is overruled, with costs, with leave to the defendant to answer upon payment of costs within 20 days, and, if he fails so to do, final judgment may be entered in accordance with the provisions of the Code of Civil Procedure applicable in such cases.

The order appealed from should be reversed, and an order entered in accordance with the views above expressed, with $10 costs and disbursements of the appeal to the appellant. All concur.