Hyperlawhypertext legal database Ackerly v. Osborn 34 N.Y.S. 459

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Ackerly v. Osborn

34 N.Y.S. 459 Court N.Y. City Ct. Decision date 1895-06-25 English

Delivered by NEWBURGER, J.

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Majority

p. 459
(13 Misc. Rep. 323.)
ACKERLY v. OSBORN.
(City Court of New York, General Term.
June 25, 1895.)

Headnote

Appeal—Order Overruling Demurrer.
An order. overruling a demurrer is not appealable.
Appeal from special term.
Action by George B. Ackerly, as receiver, against Robert A. Osborn. From an order overruling a demurrer to the complaint, defendant appeals.
Appeal dismissed.
Argued before VAN WYCK, CONLAN, and NEWBURGER, JJ.
Sidney Harris, for appellant.
John Naumer, for respondent.

The complaint alleges that the plaintiff was appointed receiver of the premises No. 47 Irving Place, in this city; that, as such receiver, he rented the said premises to the defendant for one year; that the defendant went into the possession of said premises; and that he has not paid the rent for the months of September, October, November, and December, 1894, and the month of January, 1895, excepting the sum of $40. The defendant demurred to this complaint on the ground that the same fails to státe facts sufficient to constitute a cause of action, which demurrer was overruled, and, from the order overruling the demurrer, this appeal is taken. It has been repeatedly held that no appeal will lie from an order overruling a demurrer. Bank v. Lynch, 76 N. Y. 514 ; Stokes v. Stokes, 76 Hun, 314 , 28 N. Y. Supp. 165 ; Nealon v. Frisbie, 9 Misc. Rep. 660 , 30 N. Y. Supp. 551 ; Gray v. Rothschild, (N. Y. App.) 19 N. E. 847 . The appeal must therefore be dismissed, with costs. All concur.

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