Bryan v. Viele

New York Supreme Court

Bryan v. Viele

4 N.Y. St. Rep. 890

DecidedDecember 14, 1886

StatusPublished

This text of 4 N.Y. St. Rep. 890 (Bryan v. Viele) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bryan v. Viele, 4 N.Y. St. Rep. 890 (N.Y. Super. Ct. 1886).

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Opinion

Barnard, P. J.

The amended pleading was a substitute for the original one, and when it was put in under the order sustaining the demurrer to it, and by force of the leave contained in the order, the defendant lost all right to appeal from the order sustaining the demurrer. He accepted the benefit of the order, and he cannot, in this case, both amend the complaint and appeal from the order, making such an amendment necessary.

The motion to dismiss the appeal should therefore, be granted, with ten dollars costs.

Pratt and Dykman, JJ., concur.

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Barnard, P. J.

The amended pleading was a substitute for the original one, and when it was put in under the order sustaining the demurrer to it, and by force of the leave contained in the order, the defendant lost all right to appeal from the order sustaining the demurrer. He accepted the benefit of the order, and he cannot, in this case, both amend the complaint and appeal from the order, making such an amendment necessary.

The motion to dismiss the appeal should therefore, be granted, with ten dollars costs.

Pratt and Dykman, JJ., concur.

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Bluebook (online)

4 N.Y. St. Rep. 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-v-viele-nysupct-1886.