Ingraham, J.:
The action was brought to recover damages against the defendants Lerch and Sondheim. The appellant was made a party defendant, the complaint alleging that he had some intérest in the action by reason of his partnership with the defendant Sondheim, and for this reason was made a defendant, but no personal claim - was-made against him. The defendant Magnus appeared in the action, and demanded that a copy of the complaint be served upon him. Upon such complaint being served, he interposed a demurrer thereto- and duly noticed the issue raised by such demurrer for -trial, cross-notice of trial being served by the, plaintiff. Upon the argument-*367of this demurrer the order appealed from was made. No affidavit appears to have been submitted to the court, but from the record it appears that the order was granted upon the argument of the demurrer and upon the statements made in open court that the plaintiff had not intended to serve the complaint upon the defendant Magnus. The order entered on this application appears to be unauthorized. The complaint having been served upon the attorney for the defendant Magnus, he had the right to answer or demur, as he was not required to allow a judgment, which would be binding upon him, to be entered by default, and after demurring he was entitled to have the issue of law'raised by the demurrer duly disposed of. The plaintiff at any time had a right to discontinue the action against the appellant upon the payment of the costs accrued up to the time of such discontinuance ; but the court was not justified in entering an order requiring the defendant to withdraw a demurrer to the complaint. If the plaintiff desired to discontinue the action as against Magnus, he could apply to the court for a proper order of discontinuance upon the payment of costs.
The order appealed from is, therefore, reversed, with ten dollars costs and disbursements.
Van'Brtjnt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements.