Ridgway v. Bacon — 22 N.Y.S. 1016

Majority

p. 1016

RIDGWAY v. BACON et al.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

Review on Appeal—Defective Record.

An appeal from an order overruling n, demurrer, and from an interlocutory judgment thereon, cannot be considered where the record fails to show that they have been entered.

Appeal from special term, New York county.

Action by Edgar L. Ridgway, as temporary administrator of the estate of William L. Muller, against Charles P. Bacon, impleaded with others. From an order of the special term overruling a demurrer to the complaint, and an interlocutory judgment thereon, defendant Bacon appeals. Cause stricken from calendar.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Charles Donohue, for appellant.

Sumner C. Chandler, for respondent.

The appellant demurred to the complaint upon two grounds: (1) That causes of action have been improperly united; (2) that the complaint does not state facts sufficient to constitute a cause of action. The special term ordered “that said demurrer be overruled, and that plaintiff have judgment thereon for the relief demanded in the complaint, but with leave to the defendant to withdraw his demurrer, and put in an answer within twenty days, on payment of costs as taxed herein by the clerk of this court.” This order is dated October 4, 1892, but when it was entered does not appear. An order cannot be appealed from until after it is entered. In re New York Cent. & H. R. R. Co., 60 N. Y. 112 . December 15, 1892, the defendant appealed “from the order overruling the demurrer, and the interlocutory judgment entered herein upon the order of Mr. Justice Ingraham on the 28th day of November, 1892, and from each and every part thereof.” No interlocutory judgment is contained in the record, and the only evidence that we have that one has been entered is the recital in the notice of appeal. This is not sufficient, and the court cannot review a judgment not before it. An appeal does not lie from an order sustaining or overruling a demurrer before the entry of an interlocutory judgment thereon, and then both may be appealed from. Bank v. Lynch, 76 N. Y. 514 ; Welch v. Platt, 32 Hun, 194 ; Miller v. Sheldon, 15 Hun, 220 ; Lacustrine F. Co. v. Lake Guano, etc., Co., 16 Hun, 484 ; Garner v. Harmony Mills, 45 N. Y. Super. Ct. 148 ; Baylies, New Trials, 50. Hand v. Super

p. 1017

visors, 31 Hun, 531 , is overruled. The order overruling the demurrer and an interlocutory judgment may have been entered, but, if so, the facts are not disclosed by the record, and the appeal cannot be heard. The case should be stricken from the calendar, and leave granted the appellant to print new papers disclosing the true state of the record in this action. Ho motion having been made by the respondent to dismiss the appeal or strike it from the calendar, no costs are allowed. All concur.

Cases cited

In re New York Central & Hudson River Railroad 60 N. Y. 112 N.Y. 1875-02-16 p. 1016
Cambridge Valley National Bank v. Lynch 76 N. Y. 514 N.Y. 1879-03-25 p. 1016
Garner v. Harmony Mills 45 N. Y. Super. Ct. 148 N.Y. Super. Ct. 1879-04-07 p. 1016