Bruce v. Pinckney

8 How. Pr. 397

• Court: New York Supreme Court
• Decided: July 15, 1853
• Status: Published

Opinion

By the Court—Barculo P. Justice.

The sole question presented by this case is this, can an appeal he brought from a decision of the special term overruling a demurrer as frivolous as an order ?

We are of the opinion that such an appeal is not authorized by the Code; and that judgment must first be entered upon the decision of the special term, and an appeal he brought from the judgment. The authority for treating a frivolous demurrer is found in section 247, which provides that “ if a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon; and judgment maybe given accordingly.” The application in the present case must have been made under this section, and the decision below must have been a judgment, if any thing. It clearly cannot, therefore, he treated as an order for the purpose of an appeal.

Appeal dismissed.