The final judgment of the city court upon demurrer dismissing the complaint, for failure to amend it within the time prescribed, should have been entered as a judgment of the general term, for the general term directed both an interlocutory and a final judgment to that effect, and there was no necessity to apply again to the special term. It is only where the court fails to direct final judgment that application must be made for it upon motion. Code, § 1222. The direction of the general term required a final judgment from which an appeal would lie directly to this court, and it was irregular for defendant to disregard that direction, and report to the special term for asimilar final judgment. The irregularity deprived plaintiff of a substantial right, viz., a direct appeal to this court, and involved the burden of delay and the costs of a further formal appeal to the general term in order to obtain a review of a final determination which it had already pronounced. While section 1203 of the Code prescribes that judgment, generally, must be entered in the first instance, pursuant to the direction of the court at a term held by one judge, this does not restrict the power of the general term, upon appeal from a judgment so entered, from making a direction for a different judgment. In the case of judgment upon demurrer, where the special term in the first instance may order an interlocutory and also a final judgment, (section 1021,) that power may be exercised by the general term upon appeal from such interlocutory or final judgment. Where the interlocutory judgment of the general term overrules a demurrer to a complaint, it may direct final judgment to be entered upon default of answer, and, even though the action be one in which the plaintiff could not have the relief he demanded without application to the court, (Code, §§ 1214, 1215,) the general term may direct final judgment for such relief, (Smith v. Rathburn, 88 N. Y. 660.)
Appellant refers us to section 1224 of the Code, which provides that, where an order or judgment is wholly or partly affirmed upon appeal to the general term, and no issue of fact remains to be tried, the general term may, in its discretion, render final judgment, unless it permits the appellant to amend or plead over; and his contention is that this express grant of power to the general term in the case of an affirmance to render final judgment excludes its exercise in the case of a reversal. We cannot agree with this construction. The authority granted by the Code to the court to direct both interlocutory and final judgment is nowhere confined to the court at special term after an appeal has been taken to the general term. In the case of Smith v. Rathburn, cited, the power of the general term to award the judgment which the special term could have allowed is not placed upon the authority of section 1224, although that was a case of affirmance. Section 1224 is not cited in the opinion of the court as reported, but the position taken is that the court, whether acting at special or general term, is the same court, and had the power to give such judgment as it determined the party was entitled to.
The remaining questions raised by the appellant, i. e., loches on the part of the plaintiff in not moving earlier to correct the error in the entry of judgment, and waiver of defect by taking an appeal from the unauthorized judgment, were proper for the consideration of the city court, but as they were not deemed sufficient, in the exercise of discretion by that tribunal, to justify a denial of the relief prayed for by the plaintiff, we cannot disturb the order upon any such ground. Order affirmed, witli costs. All concur.