McManus v. McManus — 150 N.Y.S. 87

Majority

p. 87

McMANUS v. McMANUS.

(Supreme Court, Appellate Term, First Department.

December 4, 1914.)

Headnote

Courts (§ 190^[1] )—Municipal Courts—Be view—Order on Demurrer.

Where it did not appear that an interlocutory judgment had been entered on demurrer to the complaint, an order overruling the demurrer was not appealable,, though the notice of appeal stated that defendant appealed from the “order and judgment.”

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. § 103.]

p. 88

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

Action by Eulah McManus against Arthur J. McManus. From a Municipal Court order overruling a demurrer to the complaint, defendant appeals. Dismissed.

Argued October term, 1914, before SEABURY, BIJUR, and COHADAN, JJ.

Peck, Schmidt & Burns, of New York City (Jerome A. Peck, of Port Chester, of counsel), for appellant.

Kindleberger & Robinson, of New York City (Charles P. Robinson, of New York City, of counsel), for respondent.

The defendant appeals from an order overruling a demurrer to the complaint. An appeal will not lie from an order overruling or sustaining a demurrer. Muttart v. Muttart, 93 N. Y. Supp. 468 ; Binder v. Robinson, 59 Misc. Rep. 155 , 110 N. Y. Supp. 229 . Although the notice of appeal has the words “and judgment” interlined therein after the word “order,” no interlocutory or final judgment appears in the record, and evidently none has been entered, as the certificate of the clerk makes no reference thereto. The appeal must therefore be dismissed.

Appeal dismissed, with $10 costs. All concur.