After issue had been joined by the service of an answer, the parties stipulated for a reference to hear and determine. On the cause coming on for trial before the referee, the defendant orally demurred to the third cause of action, on the ground that it did not state facts constituting a cause of action, because it was not stated that the plaintiff paid the note in question in pursuance of his guaranty,, or became the owner of the note before the action was commenced. The referee sustained the demurrer, and directed the entry of an interlocutory judgment thereon, which was done. Counsel for plaintiff insisted that the complaint needed no amendment, but asked, if the referee thought it did, to be permitted to insert appropriate words showing that the transactions took place before the commencement of the , action. After the entry of the alleged interlocutory judgment, the-plaintiff moved to be .permitted to serve an amended complaint, amplifying the same cause of action which had previously been set forth,, which the court granted upon payment of $10 costs only, and from which order the defendant now appeals.
[1, 2] The plaintiff was justified in ignoring the alleged interlocutory judgment, founded upon an oral demurrer interposed at the trial after answer. A demurrer upon which an interlocutory judgment can be founded must be in writing, and in case a defendant desires to-demur to a complaint he must do so, and have the issue of law thus raised disposed of before answer. Code Civ. Proc. §§ 487, 499. Answer and demurrer are distinct pleadings raising different issues (Cashman v. Reynolds, 56 Hun, 333, 9 N. Y. Supp. 614), and a defendant - cannot interpose both to the same complaint, except that where more-than one cause of action is stated he may demur to one and answer to the other (Code Civ. Proc. § 492). By interposing an answer he does not waive the objection to the jurisdiction of the court, or the-objection that the complaint does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 499. Where he has answered, however, it is too late to interpose a demurrer as such; but on the-cause coming on for trial he may move to dismiss the complaint or the particular cause of action on the ground that facts sufficient to-constitute a cause of action are not stated. Kelly v. Security Mutual Life Ins. Co., 186 N. Y. 16, 18, 78 N. E. 584. The defendant did not. make such a motion, but demurred orally, and an interlocutory judgment was directed to be entered.
[3] The learned court at Special Term was correct in not imposing costs by reason of the pretended interlocutory judgment. The terms upon which the amendment was permitted were sufficient. The origi*157nal complaint needed no amendment. But, if it did, the amendment was merely technical, and in no way changéd the cause of action, and was one which the referee had power to grant, and which he should have granted without the imposition of any terms whatever. The defendant’s claim of surprise was unwarranted, because his answer contained no general denial, but consisted of the affirmative defenses of payment and lack of consideration only.
Nor was the plaintiff guilty of loches. He made his motion as soon as he could reasonably be expected to comprehend the extraordinary practice which the defendant pursued.
[4, 5] The stenographer’s minutes were not served as part of the motion papers, and, strictly speaking, they should not have been considered. Their consideration did no harm, however, for the affidavits fully showed the situation. The plaintiff complied with the rule by serving a copy of the proposed amended complaint with his moving papers, and the defendant was thereby apprised of the amendment desired.
The order should be affirmed, with $10 costs and disbursements. All concur.