[If leave to answer is not given] It is therefore ORDERED, that plaintiff have final judgment overruling said demurrer and for the relief demanded in the complaint herein, with costs to be taxed."

[Or if leave to withdraw demurrers and plead over is granted:] It is therefore ORDERED that plaintiff have an interlocutory judg ment overruling said demurrer, with costs,79 but with leave to the defendant, within twenty days after service of a copy of such interlocutory judgment on his attorney to withdraw said demurrer and answer the complaint, upon payment of said costs to plaintiff's attorney, § and that in case of the failure of the defendant to serve an answer and pay said costs, within said time, that plaintiff have final judgment against said defendant [stating it -or, for the relief demanded in the complaint, and may add: and for that purpose that the plaintiff's damages be assessed by a jury and that a writ of inquiry issue to the sheriff of the county of naming place where action was triables1]. [Or, if issues of fact remain, see next Form.]

-

[Date.]

[Signature and title of judge.]

FORM No. 1599.

The same; sustaining demurrer.

[As in last Form to the *, continuing: That said complaint does not state facts sufficient to constitute a cause of action — or otherwise, according to the tenor of the demurrer.]

It is, therefore ORDERDED, that the defendant have final judg

77 Costs are matter of right in com mon law actions, even on granting leave to amend, unless other issues remain. Tallman v. Bernhard, 31 Abb. N. C. 84, 75 Hun, 30.

Upon overruling plaintiff's demur. rer to the answer, because the com. plaint itself is insufficient, a judg ment dismissing the complaint is erroneous; it should simply overrule the demurrer. Gabay v. Doane, 66 App. Div. 507, 73 N. Y. Supp. 381.

78 Unless leave to withdraw a demurrer is granted, the case is in con dition for a final judgment, if the issue of law was determinative of the entire action upon the facts which the demurrer admitted. See Nat. Contr. Co. v. Hudson River W. P. Co., 110 App. Div. 133.

If the demurrer reaches but one of

two or more causes of action, the court may direct that the action be severed. Code Civ. Pro., § 1021. See note 85 to next Form.

79 It is improper for the direction for interlocutory judgment to also provide for judgment as prayed for in the complaint. Smythe v. Greacen, 96 App. Div. 182, 89 N. Y. Supp. 111.

80 It is not necessary that the decision shall direct final judgment, or the interlocutory judgment provide therefor. Code Civ. Pro., §§ 1222, 1223. But it is the more usual practice to do so. Otherwise, final judg ment is obtained by application to court as on default. McCrea v. Robinson, 51 Misc. 330.

81 See notes to Form 1572; or may direct reference. Id.

ment in his favor sustaining the demurrer to the [amended] complaint and dismissing said complaint (on the merits) with costs.

85

[Or if leave to amend is granted:83 That an interlocutory judg ment be entered in favor of the defendant, sustaining the demurrer to the [amended] complaint with costs, but with leave to the plaintiff, within twenty days after service of a copy of such interlocutory judgment on his attorney, with notice of its entry,84 + to withdraw said complaint and serve an amended complaint upon payment of the said costs, and that in case of the failure of the plaintiff to serve such amended complaint and pay the costs as above provided within the time specified, the § defendant have final judgment in his favor against plaintiff, dismissing the complaint (on the merits) 86 with costs.]

[Or, if issues of fact remain undetermined:]s that interlocutory judgment be entered in favor of the defendant sustaining the demurrer to the first cause of action with costs [to abide the event] [and if another demurrer is decided at the same time- and in favor of the plaintiff overruling the demurrer to the second cause of action, with costs to be taxed] and further providing that the costs awarded are to be included in the final judgment herein etc., as in next Form.]

[Date.]

[Signature and title of judge.]

FORM No. 1600.

Interlocutory judgment on demurrer.88

[Title of court and cause.]

*This cause having regularly come on for trial upon the issue of law arising upon the defendant's demurrer to the complaint

82 If a demurrer to the entire complaint in a common-law action is sustained, defendant is entitled, as matter of right, to costs. De Turckheim v. Thomas, 113 App. Div. 123, 99 N. Y. Supp. 104.

83 Leave to amend will not be given where it is obvious that it will be of no benefit to the party in fault. See Henriques v. Yale Univ., 28 App. Div. 354, 51 N. Y. Supp. 284.

84 The completeness of the copy served, and accuracy of the notice of entry, are tested with the same strictness as when served to limit the time to appeal. Tudor v. Ebner, 109 App. Div. 521, 96 N. Y. Supp. 392.

85 If severance is allowed it may be directed by substituting for the words between the † and the & the following: divide this action into

separate actions, and serve on the attorney for each defendant respectively a copy of the complaint in the action affecting such defendant [and amend each such complaint so as to state facts sufficient to constitute a cause of action], and at the same time pay to the respective attorneys for the demurring defendants the costs of each of said demurrers, to be adjusted (permission so to divide the action and to amend the complaint being hereby granted to the plaintiff). N. Y. Code Civ. Pro., § 497.

86 Held proper in Hommert v. Gleason, 14 N. Y. Supp. 568, 20 Civ. Pro. Rep. 349.

87 See note 92 to next Form.

88 Where leave to plead over is given, entry of an interlocutory judg ment is necessary. Liegeois r. Me

herein, at a Special [or, Trial] Term held by Hon. J. K., one of the justices of this court, and said justice having heard the parties, and after due deliberation having duly made and filed his decision in writing directing interlocutory judgment to be entered as hereinafter provided, and [defendant's] costs having been duly taxed at dollars,20 now, on motion of A. T., attor

ney for [defendant], it is

ADJUDGED AND DECREED [proceed according to directions of decision, as: that the [demurrer to the complaint] herein be and the same is hereby [sustained,] with dollars costs

to the [defendant;] it is further

ADJUDGED AND DECREED that the [plaintiff] have leave to serve an [amended complaint] within twenty days from the date of the service of this interlocutory judgment, and notice of entry, upon payment to the attorney for the [defendant] of the sum of

dollars, the costs as taxed; and that in case of the failure of the plaintiff to serve such an [amended complaint,] and pay the costs, within the time hereinbefore provided, final judgment be entered herein, dismissing the complaint [upon the merits] with costs [or otherwise, according to the case].

[In a case where issues of fact remain undetermined: 192 That the costs hereby awarded are to be included in the final judgment herein if rendered in favor of the [prevailing party on demurrer], and to be set off if uncollected and final judgment is rendered in favor of the [other party] against any recovery therein awarded.

[Serve copy with notice of entry.]

Crackan, 22 Hun, 69; appeal dismissed in 83 N. Y. 624.

89 It is improper to recite the findings at length. Beebe v. Mead, 101 App. Div. 500, 92 N. Y. Supp. 51. They must be annexed to the judg ment roll (N. Y. Code Civ. Pro.,

1237), and form a necessary part of a certified copy of the judgment record whenever it is brought in question by appeal or otherwise, or offered in evidence.

It is optional whether the decision and interlocutory judgment shall provide for the final judgment in case of failure to plead over. See note 80 to

Form 1598.

90 Defendant's costs, upon successfully demurring to entire complaint, include costs after notice of trial, and a trial fee; that costs before notice

of trial cannot be included was held in De Turckheim v. Thomas, 113 App. Div. 123, 99 N. Y. Supp. 104, in deference to co-ordinate authority cited, but the correctness of the decisions was doubted.

91 See note 84 to preceding Form.

92 Where issues of fact still remain, after the decision of the demurrer, final judgment can only be taken when all the issues have been decided. Costs on the determination of the demurrer may be awarded absolutely, or to abide the event, but execution may not issue to collect them until after final judgment, and a provision for off-setting them, if awarded_absolutely, is proper. Cassavoy v. Pattison, 101 App. Div. 128, 91 N. Y. Supp. 876.

FORM No. 1601.

Order for final judgment on demurrer.93

[Title of the cause.]

At a Special Term [etc., as in
Form 820, p. 1174].

[As in last Form from the to the t, continuing thus:] overruling the demurrer, and further providing that if defendant should not within twenty days from service thereof pay costs and answer, final judgment should be entered to the following effect; and said interlocutory judgment having been duly entered and served, and defendant not having elected to answer, and his time to do so having expired as appears by the affidavit of A. T., attorney for the plaintiff [proceed as in case of defendant's default in pleading, after appearing see Forms Nos. 1572, etc.]. [Or, if defendant has been successful and final judgment not directed:] sustaining said demurrer, but with leave to the plaintiff to serve an amended complaint within twenty days after service of the interlocutory judgment and upon payment of the costs awarded thereby; and an interlocutory judgment so providing having been duly entered herein on the day of 19 ; and it appearing from the affidavit of Y. Z., the defendant's attorney verified on the day of 19 that the plaintiff has failed to serve an amended complaint, or to pay said costs, and that more than twenty days have expired since service upon his attorney of a copy of said interlocutory judgment; now, upon reading and filing the notice of motion, dated , and the said affidavit of Y. Z., and upon proof of due service thereof upon plaintiff's attorney, and after hearing Y. Z., of counsel for defendant, for the motion, and A. T., Esq., of counsel for plaintiff, opposed, it is, on motion of Y. Z., attorney for the defendant,

ORDERED, that defendant have final judgment herein dismissing the complaint of the plaintiff [upon the merits], with costs. [Judgment; see, for entry by the clerk, 1565; and Forms Nos. 1566, 1583, for entry by order of the court.]

[Serve copy of judgment, with notice of entry, to limit time to appeal.]

93 Whether final judgment has or has not been directed by the interlocutory judgment, proceedings to obtain final judgment follow the same course, when plaintiff is the successful party, as where the defendant has appeared, and defaulted in pleading. Code Civ. Pro., §§ 1222, 1223. The

application is to be heard as a motion. Id., § 1230. See note 80, supra.

If defendant has been successful on the demurrer, final judgment may be entered by the clerk ex parte, if directed by the interlocutory judgment, and plaintiff has failed to amend and pay costs. If not so directed by the

ARTICLE IV.

PROCEEDINGS IN CASE OF TRIAL BY JURY.

I. BRINGING ON THE TRIAL.

II. VARIOUS PROCEEDINGS INCIDENTAL TO THE TRIAL.
III. VERDICT, AND MOTION FOR NEW TRIAL.

IV. CASE, AND EXCEPTIONS.

V. COSTS, AND JUDGMENT.

SECTION I.

BRINGING ON THE TRIAL.

FORMS.

FORM No. 1601.

Notice of trial.94

Please take notice, that the issues of fact in this action will be brought to trial [if plaintiff's notice, it is usual to add: and