Majority
p. 970(41 App. Div. 594.) ELLISON v. SUN PRINTING & PUBLISHING ASS’N. (Supreme Court, Appellate Division, First Department. June 9, 1899.) Argued before BARRETT, RTJMSEY, and McLATJGHLIN, JJ.
Headnote
Appeal—Dismissal.An appeal from an order striking out a portion of a pleading as irrelevant will be dismissed where the pleading itself has subsequently been held bad on demurrer.
Appeal from special term, New York county.
Action by Luke H. Ellison against the Sun Printing & Publishing Association. Appeal from order striking out portions of complaint.
Dismissed.
William B. Flansburgh, for appellant.
Franklin Bartlett, for respondent.
As it was conceded by counsel for both parties upon this "argument that subsequent to the entry of the order appealed from a demurrer had been interposed to the complaint in this action, and such demurrer sustained, with leave to the plaintiff to amend the complaint, it would seem that there is nothing upon the appeal for the court to review. An appeal from an order relating
p. 971
to the form of the pleading falls when the pleading itself is adjudged bad upon demurrer. If the plaintiff had desired to review the action of the court below in striking out this allegation, he should have brought his appeal on for argument before the trial of the issue of law on the demurrer. As counsel for both parties concede upon the argument that such demurrer has been interposed and sustained, the appeal should be dismissed, but, as no formal motion to dismiss the appeal was made, without costs. Appeal dismissed, without costs.