#### Thomas Funson, as Administrator, Etc., Plaintiff, *v.*Lewis N. Philo et al., Defendants.

(Supreme Court, Clinton Special Term,

April, 1899.)

1. Demurrer — Form of decision thereon.

No stated form nor prescribed words are necessary to a decision of the court upon a demurrer, and the decision is sufficient if it appears from it that the issues of law were decided.

2. Same — An interlocutory judgment must be entered before a final one can be.

Such a decision is not an order of the court; and where it provides for an interlocutory judgment and, if the. defeated party, does not comply with its terms, for a- final judgment, a failure to enter an interlocutory judgment upon a proper roll makes the entry of a final judgment premature and it will be set aside as irregular.

Demurrer to complaint.

Ostrander *&*Salisbury, for plaintiff.

Edgar Hull, for defendants.

Kellogg, J.

The defendants demurred to the complaint herein upon the sole ground that it failed to allege facts sufficient ¿to constitute a cause of action. The issue of law was tried at Special Term, held at Amsterdam, December 24, 1898, and a decision was then signed by the presiding justice, which, after reciting certain-preliminary matters, reads as follows;

“ Ordered, that defendants’ demurrer be and the same is hereby overruled, with costs, and that plaintiff have judgment for the relief *263demanded in the complaint, with leave to the defendants to answer within twenty days from the service of this order on payment of costs.”

That this is a sufficient declaration to constitute a decision, as the Code contemplates, it seems to me beyond question. Ho stated form and no prescribed words are provided by the Code in which to express a decision. . It answers the requirements if it can be seen that the court decided the question at issue, and it can also be understood how it decided. Whether the decision is expressed in good or bad English, or in good or bad form in prose or in rhyme, it will serve if it can be seen that the issues at law were by the court determined.

The only thing which is not plain in this practice is, how the courts have been able to mate it difficult to the practitioner. Section 1021 of the Code says: “The decision of the court * * * upon the trial of a demurrer * * * must direct the final or interlocutory judgment to he entered thereupon. * '* * When it directs an interlocutory judgment, with leave to the party in fault to plead anew or amend * * * it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed.”

The decision of the court on such an issue is not an order. The decision is the basis of a judgment of record, and it must be either interlocutory or final; and, before entry by the clerk, a roll in either case must be made up.

The decision here provides for an interlocutory judgment in the first instance, and a final judgment in case defendant should fail to comply with the terms imposed; such final judgment in this case requiring no further application to the court, but might be entered by the clerk on proof of noncompliance with the terms imposed.

The error in practice, which counsel for plaintiff has apparently fallen into, comes from treating the decision of the court as an order. It is apparent no interlocutory judgment has been entered, herein; and the entry of the final judgment is premature. After the filing of a proper roll and entry of an interlocutory judgment, based upon the decision and notice thereof, the defendant will have twenty days in which to answer over in case he does not choose to appeal. The entry of the final judgment herein was' irregular, and should be set aside, and it is so ordered.

Ordered accordingly.