43 Misc. 19 | N.Y. App. Term. | 1904
The judgment attacked was entered against the defendant after his demurrer to a reply to a separate defense had been overruled, the facts in the case being more fully stated in the opinion herewith handed down on the appeal from the judgment. The g-round of irregularity specified in the notice of motion is that the judgment is a final
The case of Brassington v. Rohrs, 3 Misc. Rep. 258, decided by the General Term of the late Court of Common Pleas, is directly in point. There the plaintiff demurred to one portion of the answer, and after obtaining judgment in his favor as to that, moved to strike out the rest of the answer as sham, and so dispose of the whole defense. A judgment .on the demurrer was entered, which the defendant moved to set aside. In affirming the order denying such motion, the court said: “ Ho irregularity was stated in the order to show cause, but the affidavit complained that a final judgment for costs had been entered, which was claimed to have been irregular. The motion was denied. The judgment as entered expressly provides that it is an interlocutory judgment, and not a final one. Had it been a final judgment, it would have provided for the recovery of the demand in the complaint. The objection seems to be that costs were taxed and included in this interlocutory judgment; but this is exactly what the Code allows, § 3232. Adams v. Ward, 60 How. Pr. 288. The interlocutory judgment provides for execution for the collection of the costs. This also is authorized. Code, §§ 779, 3233.” See also Bernheimer v. Hartmayer, 34 Misc. Rep. 346.
Section 1200 of the Code makes the following definition: “A judgment is either interlocutory or the final determination of the rights of the parties in the action.” We cannot see any ground for argument that the judgment in this case is the “ final determination of the rights of the parties in the ac
The order should be affirmed, with costs.
Freedman, P. J., and McCall, J., concur.
Order affirmed, with costs and disbursements.'