A defendant, if he will take issue with the plaintiff -upon the. facts of the case, must either deny some material allegation stated in' the complaint, or state some new matter constituting a defence or counterclaim. If the answer does neither, the plaintiff, instead of demurring, as under the former practice, may move, summarily, for judgment upon the answer. If the judge to whom he applies is of opinion that the answer does not tender to the plaintiff a material issue, he is to give judgment accordingly. In *458other words, he is to make an order that the plaintiff is entitled to judgment, notwithstanding the answer.
The decision is not the determination of an issue. On the contrary, it is determined that no issue, such as the law authorizes, has been joined. (See Gould agt. Carpenter, 7 Howard, 97.) The effect of the decision is, to deprive the defendant of the benefit of his answer, and to declare that the plaintiff is entitled to the same judgment as if no answer had been interposed. The decision is not a judgment, but it authorizes the plaintiff to proceed to obtain judgment. The application is not for judgment-in the action, but for judgment upon the pleading alleged to be frivolous. The judge pronounces “judgment thereon,” and thus the unauthorized obstruction in the way of the plaintiffs’ obtaining a final judgment in the action is removed. Such a decision is an order, and not a judgment, as these terms are defined in the Code. It also involves the merits of the action. The question decided is, whether the answer does or does not contain a defence to the action, or some part thereof. It follows, that the decision is appealable under the provisions of the 349th section of the Code.
The motion to dismiss the appeal should therefore be denied, but I think it should be without costs.