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Everett v. Usona Stamping Works

123 N.Y.S. 106 Court N.Y. App. Term Decision date 1910-05-17 English

Delivered by BIJUR, J.

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p. 106
EVERETT v. USONA STAMPING WORKS.
(Supreme Court, Appellate Term.
May 17, 1910.)

Headnote

Appeal and Error (§ 154[1] )—Overruling Demurrer—Effect of Pleading Over.
Defendant abandons his demurrer to the complaint by answering after it has been overruled, and cannot complain of such ruling on appeal.
[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 959; Dec. Dig. § 154.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
p. 107
Action by Abraham Everett against the Usona Stamping Works. A demurrer to the complaint was overruled, and defendant appeals.
Appeal dismissed.
Argued before SEABURY, GUY, and BIJUR, JJ.
Bunnell & Bunnell, for appellant.
M. Meyers, for respondent.

The interlocutory judgment provided that the defendant could answer, if he so elected, on March 28th, on paying costs. On that date defendant paid costs and answered, and also appealed from the interlocutory judgment. By answering he must be taken to have abandoned his demurrer, and, consequently, can take no further steps on it. Brown v. Saratoga R. R. Co., 18 N. Y. 495 ; Wheelock v. Lee, 74 N. Y. 495 ; Greenwood v. Brink, 1 Hun, 227 .

This appeal, therefore, must be dismissed, with $10 costs, and the defendant remitted to a trial on the merits. All concur.

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