C. A. Duerr & Co. v. Craven — 114 N.Y.S. 784

Majority

p. 784

C. A. DUERR & CO. v. CRAVEN.

(Supreme Court, Appellate Term.

February 5, 1909.)

Headnote

Appeal and Error (§ 420^[1] ) — Notice op Appeal—Review oe Decision1 Sustaining Demurrer.

Code Civ. Proe. § 1316, provides that an appeal from a final judgment brings up for review an interlocutory judgment or intermediate order specified in the notice- of appeal and necessarily affecting the final judg- . ment; and hence, where a notice of appeal does not refer to any order or interlocutory judgment, a decision sustaining a demurrer to the complaint cannot be reviewed on an appeal from the judgment of dismissal entered on a refusal to plead over.

[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. § 2147; Dec. Dig. § 420.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by C. A. Duerr & Co. against J. B. Craven. . From a judgment for defendant, plaintiff appeals. Affirmed..

p. 785

Argued before GILDERSLEEVE, P. J., and GIEGERICH and - SEABURY, JJ.

Olcott, Gruber, Bonynge & McManus, for appellant.

Frank Harvey Field, for respondent.

The plaintiff sued upon a promissory note made by the defendant payable to the order of the plaintiff. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, and the plaintiff was given leave to file an amended complaint upon payment of $10 costs. Upon the day set for hearing the plaintiff appeared, but refused to plead over, and judgment was entered dismissing the complaint, with costs. From that judgment and “each and every part thereof” the plaintiff appeals, and asks that the decision of the lower court in sustaining the demurrer be reviewed.

This we cannot do. The notice of appeal contains no reference to any order or interlocutory judgment, if one was entered upon the decision of the demurrer, and an appeal from a final judgment brings up for review “an interlocutory judgment or an intermediate order which is specified in the notice of appeal and necessarily affects the final judgment.” Section 1316, Code Civ. Proc. So far as the record before us appears, the judgment appealed from is correct.

Judgment affirmed, with costs.