Ackerly v. Osborn — 68 N.Y. St. Rep. 363

Majority

p. 363

George B. Ackerly, as Receiver, etc., Resp’t, v. Robert A. Osborn, App’lt.

(New York City Court, General Term,

filed June 25, 1895.)

Headnote

Appeal — Order overruling demurrer.

Ho appeal will lie from an order overruling a demurrer.

Appeal from an order overruling a demurrer to the complaint.

Sidney Harris, for app’lt; John Naumer, for resp’t.

— The complaint alleges that the plaintiff was appointed a 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 state 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 ; 59 St. Rep. 187 ; Nealon v. Frisbie, 9 Misc. Rep. 660 ; 62 St. Rep. 412 ; Gray v. Rothschild, 20 St. Rep. 789 .

The appeal must therefore be dismissed, with costs.

All concur.

Cases cited

Cambridge Valley National Bank v. Lynch 76 N. Y. 514 N.Y. 1879-03-25 p. 363
Nealon v. Frisbie 9 Misc. Rep. 660 N.Y. Super. Ct. 1894-08-27 p. 363