The proper practice on the decision of a demurrer, where leave to amend or to plead is given, is to enter an interlocutory judgment containing such provision, and if the party does not avail himself of the privilege given to amend Or to plead, then to enter final judgment in the action. It has been held that the time in which the party is to amend or plead does not run until the entry of the interlocutory judgment (Sieglois v. McCracken, 22 Hun 69). That case correctly states the practice that should be followed under section 1021 of the Code.
In this case no judgment has been entered, either interlocutory or final. After the entry of an order directing judgment on overruling the demurrer, “ unless defendants James Stewart and James Devlin pay to the plaintiffs’ attorney ten dollars costs and serve a copy of their answer to the amended complaint within ten days,” the plaintiffs waited ten days and then entered another order for judgment, which, however, was not in the proper form in an action to foreclose a mechanic’s lien, there being no proof taken and no direction for a sale of the property affected by the lien. Judgment was entered upon this last order, but it was also irregular, as there was no provision for a sale of the property, and as it contained a direction that a further “ judgment be entered against the property,” etc.
The last-named order and judgment should be reversed, and the plaintiffs left to enter an interlocutory judgment upon the original order overruling the demurrer, which latter order is affirmed, as the defendants’ demurrer was not well taken.
No costs of this appeal.
Larremore, Ch. J., and Allen, J., concurred.
Judgment and order accordingly.