Maddock v. Van Kleeck

Headnote

Appeal from, judgment only does not bring up decision of special term, sustaining demurrer to answer.— Counterclaim—rule as to.

Appeal from a judgment entered upon an order sustaining a demurrer to the answer. The order gave the defendants leave to amend within twenty days on payment of costs. The defendants did not avail themselves of this, and plaintiff entered judgment.sustaining the demurrer and for the amount demanded in this complaint with costs. The notice of appeal does not specify that the order sustaining the demurrer was also appealed from.

The court at General Term said, “ The appeal from the final judgment does not bring up for review the decision of the court below made on the demurrer (Boreel v. Lawton, 47 Super. Qt. 558, affirmed in court of appeals). As the judgment entered conforms to the order directing its entry, and as the notice of appeal does not ask for a review of that order the judgment must be affirmed on the merits ; assuming that the defendants have a right of action it does not

arise out of the contract or transaction set forth in the complaint at the foundation of the plaintiff’s claim, is not connected with the subject of the action and is not a cause of action on contract. It could not, therefore, be the subject of a counter-claim (Boreel v. Lawton, 15 Week. Dig. 429).”