Majority
p. 551(9 Misc. Rep. 660.) NEALON v. FRISBIE. (Superior Court of New York City, General Term. August 27, 1894.) Argued before FREEDMAN and McADAM, JJ.
Headnote
1. Appeal—Final Orders—Overruling Demurrer.An order overruling a demurrer is not appealable.
2. Orders of Court—Motion to Correct.
Where an order overruling a demurrer is incomplete, because it does not direct a final or interlocutory judgment to be entered thereon (Code Civ. Proc. § 1021), the defect may be remedied by motion.
Appeal from special term.
Action by Bridget Nealon against Mortimer A. Frisbie. From an order overruling a demurrer to the complaint, defendant appeals. Dismissed.
J. M. Ferguson, for appellant.
P. A. McManus, for respondent.
The notice of appeal states that the defendant -appeals from the order overruling the demurrer. No appeal lies from such an order. Garner v. Harmony Mills, 45 N. Y. Super. Ct. 148 ; Campbell v. Cotton Exchange, 47 N. Y. Super. Ct. 558 ; Bank v. Lynch, 76 N. Y. 514 . Moreover, the order is incomplete in not directing the final or interlocutory judgment to be entered thereon, as required by section 1021 of the Code. The remedy in ■this respect is by motion. The appeal must be dismissed, with ■costs.
Cases cited
- Garner v. Harmony Mills 45 N. Y. Super. Ct. 148 p. 551
- Church v. American Rapid Telegraph Co. 47 N. Y. Super. Ct. 558 p. 551
- Cambridge Valley National Bank v. Lynch 76 N. Y. 514 p. 551