Oesterreicher v. Raisbeck , 19 Jones & S. 416 ( 1885 )

Per Curiam.

The defendant, among other defenses that were good on their face, averred for a fifth defense, “that the cause of action set forth in the complaint herein, for alleged false arrest and imprisonment of the plaintiff, did not accrue within two years before the com. mencement of this action.” It is assumed that if the action were for false imprisonment, the defense would be valid, and not valid if the action were for malicious prosecution.

The plaintiff demurred to this defense, on the ground ‘‘ that the same is insufficient in law upon the face thereof. ”

The court overruled the demurrer, on the ground that there were facts alleged in the complaint sufficient to sustain an action, either for malicious prosecution or false imprisonment. Thereupon an order was entered, “that said demurrer be and the same hereby is overruled, and that defendant have judgment thereon with costs to be taxed, but with leave to plaintiff to withdraw his demurrer within twenty days after entry and service of this order on payment of the taxed costs.”

As appears from the recitals contained in the judgment appealed from, the. costs were taxed at §36.10, and thereupon a so-called decree was entered and filed, overruling said demurrer with $36.10 costs to the defendant, but with leave to the plaintiff to withdraw the demurrer on payment of said costs ; and a copy of said decree with notice of entry thereof having been duly served on the attorneys for the plaintiff, and plaintiff having failed to withdraw said demurrer and pay said costs, and expressly waived the leave granted, a judgment was entered, which is the judgment appealed from, “that the demurrer interposed by plaintiff to the fifth defense set forth in defendant’s amended answer to the complaint herein, be and the same hereby is overruled, and that defendant recover of plaintiff, $36.10, his costs on said demurrer.”

The so-called decree referred to, is not contained in the appeal book. It evidently means an interlocutory judgment. The record also shows that neither the order nor the interlocutory judgment or decree has been appealed from. From all that can be learned and inferred, the judgment appealed from is the legitimate outgrowth of the order which we have not even been asked to review, and of plaintiff’s waiver. This being so, the judgment appealed from should be affirmed, with costs.

Moreover, we think the plaintiff was not injured by the overruling of his demurrer. If, as he now claims, the complaint does not contain an action for false imprisonment, the defense of the statute of hmitations to such a cause of action cannot embarrass the conduct of his real cause of action. So, if further provision should have been made in the judgment as to its effect upon the issues remaining to be tried, or as to the time of the payment of the costs awarded by it, such provision may yet be made on a proper application to the court at special term.

Judgment affirmed, with costs.