Action to have a judgment for upwards of $29,000 against the defendant .Henry B. Billings, upon which an execution has been issued and returned unsatisfied, adjudged to be a lien upon his alleged interest in a trust fund created by the will of his father and for a sale thereof. He demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The plaintiff thereupon moved for judgment upon the pleadings. The motion was granted, with ten dollars costs, “with leave, however, to the said defendant upon payment of such costs, to serve an answer,” and if the costs were paid and the answer served, then the motion was denied.
The motion for judgment was made under section 547 of the Code of Civil Procedure. This section is a part of chapter 6, title 2, of the Code of Civil Procedure. Title 2 is headed 1 e Provix . • sions generally applicable to pleadings,” and the first section in the title (518) provides that “ This chapter prescribes the form of pleadings in an action and the rules by which the sufficiency thereof is determined, except where special provision is other-' wise made by law.” A new section, known as 547, was added. in 1908 (Laws of 1908, chap. 166), and provides that “ If either party is entitled to judgment upon the pleadings, the court may, upon motion, at any time after .issue joined, give judgment accordingly.” The purpose sought to be accomplished by this section was to enable the parties to avoid the long delay incident to waiting until the action was reached upon the calendar for trial and to permit them, after issue was joined, to'move. for judgment at Special Term upon the same grounds and governed by the same rules as though the motion were made at the trial. (Clark v. Levy, 130 App. Div. 389; Mitchell v. Dunmore Realty Co., 135 id. 583.) A motion for judgment under this section cannot, however, be granted if a material issue of fact, or law be raised by the pleadings. If material issues, either of fact" or law, are raised, they must be disposed of before judgment can be rendered, as provided iff chapter 10, title 1, *551article 1, of the Code of Civil Procedure, that is by a trial. The first article of the chapter is headed “Issues and the mode of trial thereof,” and the first section in the article (963) provides that “The issues treated of in this chapter are those only which are presented by the pleadings. An issue arises where a fact or a conclusion of law is maintained by one party and controverted by the other. Issues are of two kinds: 1. Of law; and 2. Of fact.” Section 964 provides: “An issue of law arises only upon a demurrer. ” Then follow provisions as to the manner in which issues of fact and issues of law are to be tried, and an issue either of fact or of law must be tried in the manner pointed out in chapter 10, title 1, article 1, “unless it is disposed of as prescribed in chapter sixth of this act. ” (Code Civ. Proc. § 965 et seq.) A demurrer raises an issue of law which must be tried and disposed of in the manner pointed out, because provision is not made for its trial or disposition ‘ ‘ in chapter sixth” and is made in chapter 10. If the demurrer be frivolous, it does not raise any issue and a summary application for judgment may be made under sections 537 or 547. (Delmar v. Kinder hook Knitting Co., 134 App. Div. 558.} Otherwise, the issue raised by it must be tried (Code Civ. Proc. § 965), and after such trial a decision in writing must be filed in the clerk’s office. (Id. § 1010.) The decision when filed must direct the final or interlocutory judgment to be entered thereon. (Id. § 1021.) The trial by the court of an issue raised by the pleadings in an action, whether of fact or of law, must be followed by a decision in writing, because that constitutes the only basis for a judgment. (Wise v. Cohen, No. 1, 113 App. Div. 859; Lederer v. Lederer, 108 id. 228; Sommer v. Sommer, 87 id. 434; Gein v. Little, 86 id. 503; Lentschner v. Lentschner, 80 id. 43.)
The demurrer in the present cáse clearly is not frivolous. Whether the appellant has a present interest in the trust fund created by the will of his father which can be sold to satisfy a judgment against him, presents a question of law, of which much might be said in opposition. (Code Civ. Proc. §§ 1879, 2463.) Under the will the only words of present gift are to the trustees therein named, in whom the legal estate is vested subject to a trust for the benefit of the testator’s widow during her life, and it is only upon the death of the widow that the *552trustees are directed to divide and dispose of the principal sum.. The direction is that at such time •— that is, the death of the widow—the trustees distribute such fund among such of testator’s descendants as may be living, not at the time of the testator’s death, but at the time, of the death of the widow, who is still living. The demurrer raises this issue, and it must be determined by a trial, followed by a decision,, upon which judgment can be entered. I use the word decision, not because there is any magic in the name, but because the Legislature has enacted that the trial of an issue of law shall be followed by a “decision” (Code Civ. Proc. § 3343, subd. 5) in writing upon which judgment shall be entered. (Id. §§ 101Q, 1021.) I cannot believe that the Legislature intended, by enacting section 547, to provide that an issue of law raised by demurrer could be summarily disposed of by the entry of. an order. Had it so intended it would seem as though the other sections relating to a demurrer would have been repealed or amended in such a way- as to make the practice, under all of the sections, harmonious. . It certainly does not simplify the practice, at least so far - as appeals, are concerned, if the sufficiency of a demurrer can be tested Under section 547, because this court has already held.that separate appeals may be taken from the order as well as from the judgment. (Mitchell v. Dunmore Realty Co., supra.) The learned justice who heard the motion which resulted in the order appealed from, as appears from his opinion, felt bound by a decision made by another justice sitting in a Co-ordinate branch of the court. There, after a trial conducted in the manner pointéd out in the Code of Civil Procedure, the demurrers were overruled; but that does not justify, when the motion was here made, the granting of a judgment without a trial, even though a similar question were presented.
There seems to be some misapprehension as to the purpose of section 976 of the Code of Civil Procedure and the practice to be adopted under it. This section is the same as section 255 of the Code of Procedure, and was.amended by chapter 946 of the Laws of 1895, chapter 569 of the Laws of 1900, and chapter 493 of the Laws of 1909. Prior to the amendment- of 1900, an issue raised by a demurrer - had to be tried at a Trial or Special *553Term in the county where the venue was laid. In some of the counties of the State not more' than two Trial and Special Terms were held each year, and in many of them not over four or five, hut in the judicial districts in which such counties were located Special Terms were frequently held for the purpose of hearing contested motions. To obviate the delay which a demurrer necessarily brought about in the counties referred to, section 976 was amendéd in 1900 (and made applicable to the whole State, except the first and second judicial districts) by adding the sentence “an issue of law may be brought on and tried, at any term of court, as a contested motion.” The section remained as thus amended until 1909, when the exception was stricken out and the section made • applicable to the whole State. (Laws of 1909, chap. 493.) The amendment permitting the issue raised by demurrer to be brought on as a contested motion did not mean that it could be disposed of in the same manner as a contested motion, that is, by the simple entry of an order. The issue raised by the demurrer, after the amendment, had to be tried and disposed of in precisely the same manner that such issues had theretofore been disposed of. All that the amendment did was to enable a party to dispose of the issue raised by a demurrer by bringing the same to trial at any of the terms of court where a contested motion could be heard. If this is • not the meaning of the amendment, then it is somewhat significant that its correct meaning was not ascertained by the profession for nearly ten years, and then only after it was made applicable to the first judicial district, where prior, as well as subsequent, to the amendment, an issue raised by a demurrer could be brought to trial within a very few days.
Here, a decision in writing was not filed, but simply an order entered granting judgment and providing that defendant might answer on payment of costs. The order, however, did not give the defendant permission to withdraw his demurrer. This could only be done by leave of the court, and whether such leave should be granted is within its discretion. (National Contracting Co. v. Hudson River W. P. Co., 110 App. Div. 133; Fisher v. Gould, 81 N. Y. 228; Simson v. Satterlee, 64 id. 657.) The demurrer admits every material allegation of *554fact alleged in the complaint. If the appellant, therefore, should interpose an answer without withdrawing the demurrer, it is difficult to see what good it would do him. All that the plaintiff would have to do at the trial would he to introduce the demurrer in evidence. (National Contracting Co. v. Hudson River W. P. Co. supra; Asphalt Construction Co. v. Bouker, 127 App. Div. 730; Peters v. Needham Piano & Organ Co., 124 id. 749.) Considering, however, the‘merits of the demurrer, I concur in'the views expressed by. Mr. Justice Scott.
My conclusion, therefore, is, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for judgment denied, with ten dollars costs.
Order modified as directed in opinion, and as modified, affirmed, with ten dollars costs and disbursements.