Armstrong v. Weed — 62 N.Y. 250

Majority

p. 250

Thomas Armstrong, Respondent, v. Smith M. Weed, Appellant.

(Argued May 25,1875;

decided June 8, 1875.)

Headnote

An order directing judgment for plaintiff unless defendant answer, on account of the frivolousness of a demurrer to the complaint, is not reviewahle in this court. s

Appeal from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term directing a judgment for plaintiff on account of the frivolousness of defendant’s demurrer to the complaint, and that the damages be assessed by a sheriff’s jury unless defendant answer within twenty days after service of copy of the order.

Geo. W. Miller for the appellant.

The order of the General Term was reviewahle. (Rogers v. Wheeler, 43 N. Y., 598 ;

p. 251

Coit v. Stewart, 50 id., 17; Code, § 11, sub. 2; People v. Benedict, 47 N. Y., 667 ; Wilkin v. Raplee, 52 id., 248; Fredericks v. Taylor, id., 596; Rise v. Ehele, 55 id., 518, 524.) The demurrer was not frivolous. (Sixpenny Svgs. Bk. v. Levan, 12 How. Pr., 543 , 544; Stone v. Cooper, 2 Den., 299 ; Bennett v. Williamson, 4 Sandf., 60 ; Onslow v. Howe, 3 Wils., 177; Caldwell v. Raymond, 2 Abb. Pr., 192 .)

Thos. Armstrong for the respondent.

An order overruling a demurrer to a complaint, whether upon the merits or as frivolous, with leave to the defendant to answer, and upon failure to answer directing damages to be assessed by a jury upon a writ of inquiry, is not among the orders from which appeals may be taken to this court. The orders that may be reviewed by the Court of Appeals are specified in section 11 of the Code, and this class of orders is not among them. (Paddock v. Springfield F. and M. Ins. Co., 2 Ker., 591; Briggs v. Bergen, 23 N. Y., 162 ; Adams v. Fox, 27 id., 640 ; People v. Benedict, 47 id., 667.)

The appeal must be dismissed.

All concur.

Appeal dismissed.