Garland v. Van Rensselaer

BARNARD, P. J.

The defendant Van Rensselaer demurred to-the complaint of the plaintiffs. The demurrer was overruled, and judgment ordered in favor of the plaintiffs therein, with leave to the defendant to answer within 20 days, upon the payment of $20 costs. The order was entered on the 28th of January, 1893, and a copy, with notice of the entry thereof, was served on the attorney for the defendant on the 3d of February, 1893. The costs were not paid, .and no answer was served within the time. The plaintiff entered judgment upon the demurrer in his favor, March 1, 1893. The demurring defendant made a motion to set aside this judgment as irregular, in that no decision had been made and filed under sections 1010 and 1021 of the Code.¹ The order for judgment was a sufficient decision under section 1010 of tlie Code. Eaton v. Wells, 82 N. Y. 576; Wood v. Lary, 124 N. Y. 83, 26 N. E. Rep. 338. The order for judgment was final if the terms were not accepted, and the judgment was regular, under section 1021, for that reason. The order should be affirmed, with costs and disbursements.

1 Section 1010 provides that, “upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed in the clerk’s office within twenty days after the final adjournment of the term where the issue was. tried.”

Section 1021 provides that “the decision of the court upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon.”