I think this final judgment was properly entered. The interlocutory judgment which was entered on April 4, 1905, adjudged that the demurrer of the plaintiff to the second defense, in the answer was overruled, with'costs, “but.with leave to.the plaintiff to withdraw said demurrer within ten days after service of a copy of this interlocutory judgment, with notice of entry thereof, upon the payment of the costs;” and provided “ that incase the plaintiff does not within ten days after service of a copy of this interlocutory judgment, with notice of entry thereof, pay said costs' and withdraw said demurrer, the said defendant may enter final judgment against the plaintiff, overruling the demurrer and dismissing the complaint, with costs.” A copy of this judgment was served upon the plaintiff’s attorney, with the following notice indorsed theréon: “Please take notice that an interlocutory judgment, a copy of winch is hereto annexed, has been this day duly entered in the office of the Clerk of this Court:;” and of this interlocutory judgment and this notice the' attorneys for the plaintiff admitted service., • . (
There can be no question but that if this interlocutory judgment was duly served upon, the plaintiff’s attorney, “ with notice of entry thereof,” and if the plaintiff refused to withdraw the demurrer within ten days after such service, the defendant was entitled to final judgment against the plaintiff overruling the demurrer and dismissing the complaint. The plaintiff criticises this notice of entry as not stating where the interlocutory judgment was entered. The notice was that it was. entered on the day- of the date of the notice in the .office of the clerk of this court. The action was pending in the Supreme Court of the coimty of New. York. Section 19 of articleff of the Constitution provides that “clerks of the several counties shall be clerks' of the Supreme Court, with such ■ powers and duties as shall be prescribed by.law.” Under this provision, *525the cleric of the county of Yew York was the clerk of the Supreme Court in that county, and all papers in actions pending in the Supreme Court, county of Yew York, required to be filed in the office of the clerk of the court, were, by this provision of the Constitution, required to be filed in the office of the clerk of the county of Yew York as the clerk of the Supreme Court in and for that county, and a notice" ■ that the judgment served had been on" the day named duly entered in the office of the clerk of this court was, as I view it, a distinct notice that that judgment had been entered in the office of the clerk of the county of Yew York, made by this provision of the Constitution the clerk of the Supreme Court in and for the county of Yew York. The defendant was .under this provision of the interlocutory judgment entitled to 'enter the final judgment unless the plaintiff withdrew the demurrer and paid the costs. A failure to tax the costs might possibly excuse the plaintiff not paying such costs, but it was no excuse for a failure to withdraw the demurrer.
The case of Uvingston v. New Noria Elev. R. R. Co. (60 Hun, 475) does not apply. The question as to the sufficiency of the notice of entry of that judgment arose under section 1351 of the Code of Civil Procedure. That section then provided and now provides, that an appeal must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof, and it was held that a strict compliance with this provision is required to operate as a limitation of the time to appeal; that so much do the courts favor the right of. appeal that they have gone to great length in upholding the most technical objections to the sufficiency of the papers served pursuant to the section of the Code referred to. The notice of the entry of judgment in that case merely stated that the judgment was entered with the clerk of the Supreme Court. Yow, there was a clerk of the Supreme Court in each county of the State, and applying the rule adopted in regard to the limitation of rthe time within which an appeal can be taken, the court held that some other notice as to the place of entry was necessary. In this case the action was pending in the county of Yew York. By the provision of the Constitution of 1894, to which attention has been called, the clerk of the county of Yew York was made the clerk *526of the Supreme Court in that county, and when the notice of the entry of judgment was that the judgment had bfeen entered with the clerk of this court, that is, the Supreme Court in the county of New York, I think .the notice was a sufficient compliance with the .provisions of the interlocutory judgment, and, therefore, defendant was entitled to enter the final judgment.
Attention is called in the prevailing opinion to the fact that, this court has allowed an appeal from the order affirming the interlocutory judgment to the Court of Appeals, which is still-pending. If the order of this court should be reversed, the court below would at once, on the proper motion, vacate the final judgment entered upon the interlocutory- judgment -that had been reversed. We are not to assume that -the Court of Appeals will, reverse the order of this court sustaining'the interlocutory judgment appealed from, and until that interlocutory judgment is reversed it stands in full force .and effect; and in the absence of an order staying the defendant’s proceedings,- it authorized the subsequent proceeding -therein¡dirécted. . -
I think the order appealed from should be affirmed, with costs.
O’Brien, P. J., concurred.
Order reversed, with ten dollars costs and disbursements. Motion granted, with' ten dollars costs.