Page:Federal Reporter, 1st Series, Volume 9.djvu/496

UNITED STATES V. LEVEKICH» , 481 �United States v. Lbverich and othera. {District Covrt, S. D. New York. November 2, 1881.) �1. Peactice AT CoMMON Law— JuDOMBaiT OS Demudiihir. �At the common law a judgment on demurrer was a final disposition of the case, unless leave was given at the same term of the court to withdraw it and plead over. �2. Pbactice Undee the New York Codb op Peocbdubb— Okdeb Ovbkeuliiig �DBMUIir.ER. �Under the New York Code of Procedure, where, upon demurrer to an answer getting up new matter in defence, an order is entered slmply overruling the demurrer, and no reply to such new matter is required in order to go to trial, Md, that such an order, not direoting final judgment, is, in practice, equiva- lent to an order to proceed to trial upon the issues raised by the answer as it stands, and that no other formai withdrawal of the demurrer is necessary. �Motion to Strike Cause from the Calendar. �S. L. Woodford, U. S. Atty., and E. B. Hill, Assi. Dist. Atty., for plaintiff, �MiMer e Peckham, for defendants. �Brown, D. J. The plaintiff demurred to new matter in the answer Trhich did not constitute a counter-claim, but was set up as a defence to the action, This is authorized by section 494 of the New York Code of Procedure. After argument the demurrer was overruled. The defendant thereupon prepared an order for signature, overruling the demurrer and ordering judgment for the defendant, with costs. On inspecting the order on file, it appears that the judge struck out the words "ordering judgment for the defendant on the demurrer," leaving simply the words "overruling the demurrer." The defend- ant entered this order and served upon the plaintiff a copy of it, and afterwards admitted due service of a notice of trial for this term. He now moves to sti:ike from the calendar as improperly there, bc- eause no order has been entered giving leave to the plaintiff to with- a/raw the demurrer and proceed either to reply or to go to trial upon the issues of fact raised by the answer, as denied by implication, under the provisions of the New York Code, § 522. �The practice at common law, and in this state prior to the Code, ^, as well settled, that if a demurrer to a plea or answer for insuffi- ciency were overruled, the defendant had judgment of nil capiat, that the plaintiff take nothing by his writ, and this operated as a final judgment, (1 Burr. Prac. 251; 2 Arch, Pr. 11, 225; Brevoort v. Bre- voort, 40 N. Y. Supr. 216; Cooke v.Sager, 2 Burr. 754;) but the court v.9,no.8— 31 ��� �