Reynolds v. Freeman — 6 N.Y. Super. Ct. 702

Majority

p. 702

Reynolds v. Freeman.

Headnote

From an order sustaining or overruling a demurrer, an appeal may now be taken to the general term, without security.

Such an appeal is an enumerated motion, the cause must be placed on the calendar, and the requisite papers be printed and furnished as in other calendar causes.

If a judgment have been entered on the order, the appeal must be from the judgment and not from the order.

Where the decision on the demurrer is final in the cause, giving no leave to amend, or to plead over, it should be appealed from as a judgment.

February 13, 1852.

In a suit commenced by Reynolds against Freeman and several others, Freeman demurred to the complaint. The demurrer was argued at the special term in December, 1851, and

p. 703

was allowed by the court, with leave to the plaintiff to amend. The plaintiff thereupon served a notice that he appealed from the order allowing the demurrer. At February term, 1852, he noticed the appeal for argument, placed the cause on the calendar of the general term, and when it was reached on the second day of the term, took an order by default, reversing the order or judgment below. The plaintiff did not give any security on appealing, nor serve any printed copy of the papers on the appeal, and no judgment had been entered on the demurrer when the appeal was taken. The defendant moved to set aside the order entered at the general term as irregular, insisting that the appeal was void.

(?. F. Betts, for the defendant.

A. Nash, for the plaintiff.

(with the concurrence of all the Justices.)— Section 849 of the code, as amended in July last, permits an appeal from a decision upon a demurrer, as from an order, as distinguished from a judgment. We suppose that under this provision, if a judgment have been perfected upon the decision of the demurrer, the appeal must be from such judgment, as formerly; but if no judgment have been entered, the party may appeal from the order of the judge sustaining or overruling the demurrer.

In this case, no judgment has been entered. The plaintiff was correct in appealing from the order, and on such appeals no security is required. (Allen v. Johnson, 2 Sand. S. C. R. 629.) Appeals from orders, according to our rules and practice, have heretofore been heard in the general term, on Saturdays only. If the appeals from orders allowing or overruling demurrers fall within the same class, the plaintiff was irregular in taking a default on the second day of term, which was Tuesday.

According to the 80th rule of the supreme court, demurrers are still, what they have always been deemed in our courts, enumerated motions, and such motions go upon the calendar, and

p. 704

are heard in their regular order. Then, as a calendar cause, the plaintiff was irregular in omitting to print the pleadings, &c., and furnish copies to the adverse party, as prescribed by rules 31 and 32 of the supreme court, and as was previously required in this court, by our general rule adopted May 26, 1849. In either view of the matter, -the plaintiff has erred in taking his default, and it must be set aside.

The court deem it a proper occasion to settle the practice on this subject. The appeal must be brought as already stated, if a judgment have been entered. Until judgment, it may be from the order drawn up -and entered in the minutes. If, however, the decision is final, giving no leave to amend or to plead over, it should be appealed from as a judgment in, all cases. Such appeals, whether from orders or judgments, are enumerated motions, and are to be placed on the calendar for argument; and the necessary papers are to be printed, served, and furnished, as are required in other calendar causes at the general term.