The defendant demurred to the complaint on the ground that the same did not contain facts sufficient to constitute a cause of action. The issue of law thus raised was tried at Special Term, and the court decided that the demurrer should be sustained, with leave to the plaintiff to amend in twenty days on payment of costs. An order, dated January 22, 1880, was made conformably to that decision, and duly served, but no judgment was entered upon the decision at the instance of the defendant. The plaintiff did not avail herself of the leave to amend given her Iby the order, but after the expiration of twenty days from the service of the order she caused a judgment to be entered that the ■demurrer “ be and the same hereby is sustained, with leave to plaintiff to amend her complaint within twenty days, on payment ■of the sum of $17.66, defendant’s costs as adjusted.” This is an appeal from an order denying a motion of the defendant to vacate and set aside the said judgment.
Upon the trial of a demurrer, the court is required to direct the final or interlocutory judgment to be entered thereupon. (Code Giv. Pro., § 1021.) . Such direction was not formally given in this case. But both parties have treated the order of January 22,1880, *71.as such a direction; the plaintiff contending that it directed an interlocutory, and the defendant contending that it directed a final judgment. No legal effect can be given to the order referred to, other-wiser than as a direction of some kind. Treating it as a direction to enter judgment, it became the duty of the clerk at once to enter a judgment in conformity therewith, namely, that the demurrer be .sustained, and that the plaintiff have leave to amend, &c. Such a judgment is interlocutory, for a judgment must be interlocutory or .a final determination of the rights of the parties. (Code Civ. Pro., § 1200.) And section 1021 of that Code expressly designates .a judgment, which permits a party to plead. anew or amend as an interlocutory one, and provides that when such a judgment is directed by the decision, the latter must also direct the final judgment to be entered, if the party in fault fails to comply, &c. 'These' provisions clearly show that the -practice which the Legislature intended in cases of this kind, was to substitute an interlocutory judgment for an order and. to allow a final judgment to be entered only after a failure to comply with any of the directions given by the interlocutory judgment. It is urged that 'in case the party in fault complies with the terms imposed, no judgment at all will be necessary. The answer is that terms cannot be imposed otherwise than by an interlocutory judgment, and, therefore, there can be no failure to comply, until the period fixed for compliance by the interlocutory judgment has elapsed.
The decision in this case did not direct the final judgment to be •entered. Application for such judgment must, therefore, be made .as upon a motion. (Code Civ. Pro., § 1230.)
The order must be affirmed, with costs and disbursements.
Present — Barnard, P. J., Gilbert and Dykman, JJ.Order affirmed, with costs and disbursements.