Biggert v. Nichols

18 Misc. 596, 42 N.Y.S. 472

• Court: City of New York Municipal Court
• Decided: December 15, 1896
• Status: Published

Opinion

O’Dwyer, J.

It has been well settled that an appeal will not lie from an order sustaining a demurrer to an answer with leave to amend.

The appeal in this case was taken from an order to this effect, and under many authorities it is Well settled that such an appeal .must be dismissed. Ludwig v. Gove, 14 Misc. Rep. 233; Stokes v. Stokes, 76 Hun, 314; Cambridge Valley Bk. v. Lynch, 76 N. Y. 514.

On the hearing of this appeal, the appellant applied for leave to amend the notice of appeal and undertaking on appeal so as to make the appeal from the judgment instead of the order.

The application should be denied upon the ground that the time in which to appeal from the judgment expired on the 22d day of October, 1896.

The Code requires that an appeal from an interlocutory judgment to the General Term of this court shall be taken within ten days after the service of a copy of the judgment and notice of entry.

The judgment was served October 12, 1896.

Ho power rests in the court to amend an undertaking on appeal without the consent of the sureties, for by so doing the liability of the sureties might be increased.

The appeal should be dismissed, with costs.

Van Wyck, Oh. J., and Eitzsimons, J., concur.

Appeal dismissed, with costs.