The defendants Parce and Becker were permitted by the Appellate Division in the fourth department to appeal to the Court of Appeals from an order affirming an interlocutory judgment which overruled their demurrers to the complaint. Three questions were certified to the Court of Appeals in the order of the Appellate Division allowing the appeal. This court has affirmed the order of the Appellate Division, with costs, and answered the questions certified. The appellants now move to amend the remittitur so as to permit them to withdraw their demurrers and serve answers upon payment of costs. This motion is unnecessary, in view of the character and contents of the order of the Appellate Division which has been affirmed here. That order in the same paragraph which affirms the interlocutory judgment grants leave to the demurring defendants to plead over upon payment of the costs of the demurrer and costs of the appeal to the Appellate Division. This court having affirmed the order of the Appellate Division in all respects, the provision thereof granting leave to plead over remains in force the same as the rest of the order. The affirmance here being with costs the effect of the proceedings on appeal in this action is (1) that the appellants must pay the costs of the appeal in this court; *Page 548 and (2) that upon payment of the costs of the demurrer and of the appeal to the Appellate Division within twenty days after the filing of the remittitur from this court they will be entitled to withdraw their demurrers and interpose answers if so advised.
Where an order of the Appellate Division affirming an interlocutory judgment overruling a demurrer to the complaint grants leave to plead over conditionally the affirmance of such an order in this court carries with it an affirmance of such leave to plead over; and it is not necessary under such circumstances that any express leave to withdraw the demurrer and interpose an answer should be granted by the Court of Appeals.
For these reasons the motion should be denied, but without costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Motion denied.