Cameron v. Equitable Life Assurance Society of the United States

Headnote

I. Appeals. Laws relative to taking of.

No appeal from.

(a) An order overruling a demurrer to the complaint and giving leave to answer.

See Garner v. Harmony Mills, 45 N. Y. Super. Ct. 148 .

2. Final judgment.

(<t) Interlocutory judgment, when not beviewable on appeal FROM FINAL JUDGMENT.

1. When the notice of appeal from the final judgment does not specify that the interlocutory judgment is appealed from.

Code,- §§ 1801, 1816, 1317.

(i) What is not a final judgment for the purposes of

APPEAL.

’ When a demurrer to .the complaint has been-overruled, with leave to answer, and defendant does not answer, and there

upon it is, on motion, adjudged that plaintiff recover his damages, that the same be assessed by a jury, and that a •writ of inquiry issue for that purpose, and thereupon the writ issued and the damages were assessed, and judgment was entered by the clerk against the defendant for the damages so assessed, and costs.

That the judgment was not such a final judgment as the law provides for appeals.

In this action an order was made overruling a demurrer to the complaint and giving defendant leave to answer. From this order defendant appealed to the general term.

Wo answer having been served, an order was, on March 14, 1879, entered, on plaintiff’s motion, made on notice, adjudging that plaintiff recover of defendant the damages by him sustained on account of the cause of action alleged in the complaint; and further ordering that said damages be assessed by a jury, and that a writ of inquiry be for that purpose issued, directed and delivered to the sheriff of the city and county of Wew York.

A writ of inquiry was accordingly issued, and the damages were clu'ty assessed thereunder, on notice to defendant. Thereafter, the clerk of the court, on March 81, 1879, entered judgment against defendant for the amount of the damages so assessed, and the costs, as adjusted.

Defendant appealed to the general term from the judgment of March 31, 1879, but did not specify in the notice of appeal that it appealed from the order of March 14, 1879.