Ridgway v. Bacon — 52 N.Y. St. Rep. 600

Majority

p. 600

Edgar L. Ridgway, Adm'r, Resp't, v. Charles P. Bacon, Impl'd, App'lt.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Appeal—Demurrer.

. 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; but to authorize the court to entertain such appeal the record must show such entry.

Appeal from an order of the special term overruling the demurrer to the complaint.

Charles Donohue, for app’lt; Sumner C. Chandler, for resp’t.

The appellant demurred to the complaint upon two grounds: (1) That causes of action have been improperly uni ted ; (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. R. Co., 60 N. Y., 112 . December 15, 1892, the defendant appealed from the order overrating 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

p. 601

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. Cambridge Valley Bank v. Lynch, 76 N. Y., 514 ; Welch v. Platt, 32 Hun, 194 ; Miller v. Sheldon, 15 id., 220 ; Lacustrine F. Co. v. Lake Guano, etc., Co., 16 id., 484; Garner v. Harmony Mills, 45 N. Y. Supr. Ct., 148 ; Baylies New Trials, 50. Hand v. Sup'rs of Columbia Co., 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.

No motion having been made by the respondent to dismiss the appeal or strike it from the calendar, no costs are allowed.

Van Brunt, P. J., and O'Brien, J., concur.