Majority
p. 412Bridget Nealon, Resp’t, v. Mortimer A. Frisbie, App’lt. (New York Superior Court, General Term, Filed August, 1894.)
Headnote
1. Appeal—Order overruling- demurrer.An appeal does not lie from an order overruling a demurrer.
2. Same—Motion.
The remedy is by motion, where such order is incomplete in not directing the final or interlocutory judgment to be entered thereon.
Appeal from an order overruling a demurrer to the complaint.
J. M. Ferguson, for app’lt; P. A. McManus, for resp’t.
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. Supr. Ct. 148 ; Campbell v. N. Y. Cotton Exchange, 47 id. 558; Cambridge Valley Nat. 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 § 1021 of the Code. The remedy in this respect is by motion. The appeal must be dismissed, with costs.
Present: Freedman and McAdam, X X
Appeal dismissed, with costs.
Cases cited
- Cambridge Valley National Bank v. Lynch 76 N. Y. 514 p. 412