Cook v. Pomeroy — 10 How. Pr. 221

Majority

p. 221

SUPREME COURT.

Cook agt. Pomeroy.

Headnote

The provision of § 349 of the Code, allowing an appeal “ from an order made at a special term,” &c., “ when it sustains or overrules a demurrer,” is applicable to all cases where leave to amend is given, in connection with the decision on a demurrer; and also to decisions on demurrer to part of a complaint, or answer containing several alleged causes of action or defences.

Monroe General Term,

1854.

Johnson, Welles, and T. R. Strong, Justices.

This is an appeal under § 349 of the Code, as from an order, from a decision entered in the minutes, after a trial by the court at a special term, directing judgment for the plaintiff on a demurrer taken by the defenuant to one of two several counts or alleged, causes of action in the complaint, with leave to the defendant to answer. Upon the appeal being moved for argu

p. 222

ment, it was objected, preliminarily, that the appeal‘will not lie. .

J. R. Cox, for plaintiff.

David Wright, for defendant.

In Bauman agt. The New-York Central Railroad Company, (ante, p. 218,) decided at the present term, we held, that an appeal, as from an-order under § 349 of the Code, from a decision upon a trial at special term, ordering judgment for the defendants upon a demurrer to the entire complaint, no leave to amend being given, was not warranted ; that the decision was a judgment, and an appeal could be taken from it only as such. We also expressed the opinion in that case, and briefly stated the reasons therefor, although the points were not presented, as they are distinctly in this case, that the provision of the section allowing an appeal “ from an order made at a special term,” &c., “when it sustains or overrules a demurrer,” is applicable to all cases where leave to amend is given in connection with the decision on the demurrer, and also to decisions on demurrer to part only of a complaint or answer, containing several alleged causes tif action or defences. To that opinion we adhere; and it follows, that the objection to the appeal in this case is not well taken.

Objection to the appeal, as not warranted, overruled.