Take your motion, on paying the costs of the demurrer, and of this motion. It is not of course, on overruling a frivolous demurrer, to allow the party to withdraw it and plead. But it has often been done where the attor*102nev demurred in good faith; and a defence on the *merits J ° * . _ is sworn to. An application for this, is most properly Drought forward in the form of a non-enumerated motion, on notice.
Eule accordingly. [1]
Sutherland, J., was absent.
The New York Code provides that after the decision of a demurrer, either at a general or special term, the court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead in, upon such terms as may be just. If the demurrer be allowed on the ground that several causes of action have been improperly united, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. N. Y. Code of 1851, sects. 112, 144.