#### Reginald H. Sayre, Respondent, *v.*Progressive Construction and Leasing Company, Appellant.

First Department,

December 19, 1913.

Pleading — dismissal of counterclaim under section 547 of the Code of Civil Procedure where other issues remain undetermined—judgment.

A plaintiff is not entitled to a judgment dismissing a counterclaim on a motion under section 547 of the Code of Civil Procedure where other issues remain undetermined.

It is a general rule that there can be only one final judgment in an action where the issues therein have not been severed.

Appeal by the defendant, Progressive Construction and Leasing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1913, dismissing the defendant’s counterclaim, with costs, and also from the final judgment entered in said clerk’s office on the 26th day of February, 1913, pursuant to said order, as said judgment was resettled and amended by an order entered in said clerk’s office on the 23d day of July, 1913.

*Henry S. Dottenheim [Robert C. Birkhahn*with him on the brief], for the appellant.

*Robert Kelly*Prentice, for the respondent.

Laughlin, J.:

Other issues raised by the amended 'complaint and amended answer, so far as this record shows, remain undetermined. No demurrer which might have been brought on for trial by motion (Code Civ. Proc. § 976) was interposed to the counterclaim. The judgment dismissing the counterclaim was entered pursuant to an order made on the plaintiff’s motion for judgment dismissing it.

We do not deem it necessary to consider the sufficiency of the counterclaim, for that question could not be presented for decision by a motion which, if granted, would not dispose of all of the issues in the action and entitle the moving party *800to a final judgment thereon. (Code Civ. Proc. § 547; *Stevenson*v. *Devins,*158 App. Div. 616.)

The learned counsel for the respondent attempts to sustain the judgment on the theory that it is, in effect, an interlocutory judgment; but it is not interlocutory, either in form or substance; and if it were, section 547 of the Code of Civil Procedure, pursuant to which the motion was made, does not make the notice of motion equivalent to a demurrer to a pleading upon sustaining which an interlocutory judgment may be entered. The provisions of the Code of Civil Procedure authorizing a demurrer as a pleading and providing for the disposition of issues of law arising thereon have been retained. (Code Civ. Proc. §§ 421, 487, 494, 965-969; *Maeder*v. *Wexler,*43 Misc. Rep. 19; *Bigelow*v. *Drummond,*109 App. Div. 132.) Nor can the judgment be sustained on the theory that the order severed the issues in the action. The Code of Civil Procedure authorizes the severance of the issues in an action in certain cases (Code Civ. Proc. §§ 497,1220); but this motion was not made for that relief, and, manifestly, the case does not fall within the provisions of those sections. Moreover, in the absence of such severance on motion, it is the general rule that there can be only one final judgment in an action, and, while this rule has exceptions arising from different dispositions of issues on the trial or on appeal which constitutes a practical severance, the case at bar does not fall within them. *(Bauer*v. *Hawes,*115 App. Div. 492; *Schuller*v. *Robison,*139 id. 97; *City of Buffalo*v. *D., L. & W. R. R. Co,,*176 N. Y. 308; *Altman*v. *Hofeller,*152 id. 498. See, also, *Draper*v. *Interborough Rapid Transit Co., No.*2,124 App. Div. 357.)

It follows, thei’efore, that the order and judgment should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.