Quereau v. Brown — 43 N.Y. St. Rep. 422

Majority

p. 422

Harriet E. Quereau, Resp’t, v. Henry L. Brown, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Judgment—Demubbeb.

A decision overruling a demurrer to the complaint and allowing the defendant twenty days to answer requires an intermediate judgment to enable the defendant to' appeal if he so desires, and defendant is not in default so as to permit the entry of a final judgment until such intermediate judgment has been entered.

Appeal from order directing final judgment in favor of plaintiff.

Frost & Manser, for app’lt; Silas J. Owms, for resp’t.

is an appeal from an order directing final judgment in favor of the plaintiff against the defendant, Henry L. Brown, who demurred to the plaintiff’s complaint.

The demurrer was overruled, with leave to the defendant to answer within twenty days on payment of costs. An order to that effect was entered, but no interlocutory judgment.

The defendant did not answer within the twenty days after the service of the order, and thereupon the plaintiff made motion for final judgment against the defendant Brown, which was granted, and this appeal is from that order.

The order is érroneous. The defendant desired to appeal from the decision overruling the demurrer, but could not do so until an interlocutory judgment was entered.

The decision upon the demurrer granted the defendant leave to answer, and required an intermediate judgment, and the defendant was not in defaq.lt until such judgment was entered. Code of Civil Procedure, § 1021; Liegeois v. McCrackan, 22 Hun, 69 ; 2 Rumsey’s Practice, 236, 237; Gray v. Rothschild, 13 Civ. Pro., 359.

Under the old Code the appeal could be taken from the order, but now that is changed, and the appeal must be from the judgment. Gray v. Rothschild, supra; Metropolitan Nat. Bank v. Bussell, 14 Abb. N. C., 99 ; Cambridge Val. N. Bank v. Lynch, 76 N. Y., 514 .

The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Pratt, J., concurs; Barnard, P. J., not sitting.