#### IGNATZ OESTERREICHES, Appellant *v.*GEORGE W. JONES and Others, Respondents.

*Judgment*— *it is irregular to enter judgment before issues are tried, allhoug/i a demurred' to a counter-claim has been sustained.*

In this action, brought to recover damages for injuries occasioned by the defendants’ neglect, the complaint alleged that the defendants were the owners of a building, a part of which was rented to the plaintiff, and that they opened a place in. the roof and carelessly left it unprotected,whereby the rain injured the *247plaintiff’s goods. The defendants’ answer took issue upon the facts and set up a counter-claim based upon an averment that the plaintiff had, without the defendants’ consent, made a structure upon the roof which was against the city ordinance, and that the defendants were compelled to repair it at an expense of $250. A demurrer interposed to the counter-claim having been sustained the plaintiff entered up judgment thereon, with costs.

*Held,*that an order of the Special Term setting it aside as irregular was properly made and should he affirmed.

*Robinson*v. *Had*(85 Hun,214) and *Armstrong*v. *Humming»*(22 id., 570) followed.

Appeal from an order made at tbe Kings County Special Term vacating a judgment in favor of tbe plaintiff on tbe ground tbat it was irregularly entered.

*Henry Wehle,*for the appellant.

*Smith & Dougherty,*for the respondent.

Barnard, P. J.:

Tbe complaint is framed to recover damages of tbe defendant for injuries inflicted by tbeir neglect, tbe averment being tbat they are tbe owners of a building, a part of wbicb is rented to tbe plaintiff, and tbat they opened a place in tbe roof and carelessly left it unprotected, whereby tbe rain injured tbe plaintiffs goods. Tbe answer took issue upon tbe facts and set up a counter-claim. Tbis counter-claim was based upon an averment tbat tbe plaintiff bad, without tbe defendants’ consent, made a structure upon tbe roof, wbicb was against tbe city ordinance, and that tbe defendants were compelled to repair it at an expense of $250. To tbe counterclaim tbe plaintiff demurred and bad judgment thereon in his favor. Tbe plaintiffs entered up judgment thereon, with costs. Tbe order at Special Term set aside tbis judgment.

Tbe moving papers sufficiently indicated tbe irregularity. The entry of a judgment while tbe issues of fact were undisposed of was given as tbe reason for tbe motion, wbicb the plaintiff’s attorney says be is advised and believes to be irregular. It was irregular. This was so held in *Robinson*v. *Hall*(35 Hun, 42 N. Y. Sup. Ct., 214) where a portion of tbe complaint was held bad on demurrer. Judgment was entered thereon, and tbe court at Special Term set it aside as irregular, citing many authorities. The same thing was held in *Armstrong*v. *Cummings*(22 Hun, 570). Tbe demurrer *248in tbis case was to one defense in an answer The demurrer was sustained, and the court held that the costs were not. capable of assessment. They were interlocutory and not final, and could not be enforced until the final judgment was rendered.

Order affirmed, with costs and disbursements.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment and order affirmed, with costs.