#### Christian F. Peters, Appellant, *v.*Needham Piano and Organ Company, Respondent.

First Department,

March *20,*1908.

Pleading — judgment overruling demurrer to answer — withdrawal of demurrer — discretion of court.

An interlocutory judgment overruling a demurrer to separate defenses should not provide that in case the plaintiff fails to pay the costs within twenty days after service of the interlocutory judgment, the defendant may enter final judgment dismissing the complaint; with costs. Leave should he given to the plaintiff to withdraw his demurrer, for it being determined that the defenses *750were sufficient in law, the facts set up therein stand admitted by the demurrer and the defendant is entitled to final judgment as a matter of right until the withdrawal of the demurrer.

■ A demurrer cannot be withdrawn without leave of court, and the granting of such leave is discretionary.

Appeal by the'plaintiff, Christian F. Peters, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of -the county of New York on the 9th day of December, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

*Arnold Gross*of counsel *\Fromrne*Brothers, attorneys], for the appellant.

*Henry A.*Heiser, for the respondent.,

Per.Cdriam:

Appeal from an interlocutory judgment overruling a demurrer to the second and third separate defenses of the answer. ■ The complaint contains certain allegations appropriate in an action to recover damages for malicious prosecution. The learned court at Special Term examining the complaint, in an éndeavor to ascertain what causé of action was • intended to be set up, concluded that it did not allege facts sufficient to state such cause of action. With this we agree. The complaint contains certain allegations appropriate» in an action to recover damages, for the wrongful taking and detention of a chattel. Again we agree with the Special Term that sufficient facts to sustain such cause of action were not alleged. The appellant claims in this court that in his complaint he did not intend to set forth either a cause of action for malicious prosecution or for the wrongful taking and detention of a chattel but has set up an action in conversion. If such was thé intention it certainly was not o.bvious for the pleader has carefully refrained from using the technical and usual averments in such a complaint. The defenses demurred to are sufficient in law and the demurrer wa.s properly overruled. But the interlocutory judgment provided that “in case said plaintiff fails to pay the said costs as aforesaid within 20 days after service of this interlocutory judgment upon his attorneys then defendant may enter final judgment against plaintiff dismissing the complaint with costs.” Leave should have been given to the plain*751tiff to withdraw his demurrer for the court having determined that the defenses were sufficient in law the facts set up in the' defenses stood admitted and until said demurrer was withdrawn the defendant was entitled as matter of right to a final judgment in its favor. *(National Contracting Co.*v. *Hudson River W. P. Co.,*110 App. Div. 133.) It has always been the rule that a demurrer cannot be withdrawn without leave of the court and that whether such leave should be granted is within the discretionary power of the court. *(Fisher*v. *Gould,*81 N. *Y. 228; Simson*v. *Satterlee,*64 id. 657.) As the Special Term gave" leave to 'pay the costs within a time fixed and provided for a dismissal of the complaint only upon failure to so pay the costs it is evident that it only intended to dispose of. the question of law raised and to allow a trial upon the facts. This could only be accomplished by the withdrawal of the demurrer. .

The judgment appealed from should, therefore, be modified by providing that leave be given to appellant to withdraw the demurrer and pay the interlocutory costs within twenty days and on failure so to do that final judgment, dismissing the complaint, with costs, may be entered, and as so modified affirmed, with costs to respondent.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke- and Houghton, JJ.

Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent. Settle order on notice.