Ellison v. Sun Printing & Publishing Ass'n

Majority

p. 594

Luke H. Ellison, Appellant, v. Sun Printing and Publishing Association, Respondent.

Headnote

Striking out irrelevant matter — effect of a demurrer to the pleading Toeing sustained.

An appeal from an order, striking out a portion of a complaint as irrelevant and redundant, fails where the complaint is adjudged had upon demurrer while the appeal is pending.

Appeal by the plaiñtiff, Lulce H. Ellison, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of July, 1891, striking out a portion of the plaintiff’s amended complaint as irrelevant and redundant.

William, B. Flansburgh, for the appellant.

Franklin Bartlett, for the respondent.

• As it was conceded by counsel for both parties upon this argument that subsequent to the entry of the order appealed from a demurrer had been interposed to the complaint in this action and such demurrer sustained, with leave to the plaintiff to amend the complaint, it would seem that there is nothing upon the appeal for the court to review. An appeal from an order relating to the form of the pleading falls when the pleading itself is adjudged bad upon demurrer. If the plaintiff had desired to review the action of the court below in striking out this allegation, he should have brought his appeal on for argument before the trial of the issue of law on the demurrer. As counsel for both parties concede upon the argument that such demurrer has been interposed and sustained, the appeal should be dismissed, but as no formal motion to dismiss the appeal was made, without costs.

Barrett, Rumset and McLaughlin, JJ., concurred.

Appeal dismissed, without costs.