C. A. Duerr & Co. v. Craven

Appellate Terms of the Supreme Court of New York

C. A. Duerr & Co. v. Craven

114 N.Y.S. 784, 1 N.Y. Civ. Proc. R., (N.S.) 10

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 5, 1909

StatusPublished

This text of 114 N.Y.S. 784 (C. A. Duerr & Co. v. Craven) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

C. A. Duerr & Co. v. Craven, 114 N.Y.S. 784, 1 N.Y. Civ. Proc. R., (N.S.) 10 (N.Y. Ct. App. 1909).

Pincite

Opinion

PER CURIAM.

The plaintiff sued upon a promissory note made by the defendant payable to the order of the plaintiff. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, and the plaintiff was given leave to file an amended complaint upon payment of $10 costs. Upon the day set for hearing the plaintiff appeared, but refused to plead over, and judgment was entered dismissing the complaint, with costs. From that judgment and “each and every part thereof” the plaintiff appeals, and asks that the decision of the lower court in sustaining the demurrer be reviewed.

This we cannot do. The notice of appeal contains no reference to any order or interlocutory judgment, if one was entered upon the decision of the demurrer, and an appeal from a final judgment brings up for review “an interlocutory judgment or an intermediate order which is specified in the notice of appeal and necessarily affects the final judgment.” Section 1316, Code Civ. Proc. So far as the record before us appears, the judgment appealed from is correct.

Judgment affirmed, with costs.

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PER CURIAM.

The plaintiff sued upon a promissory note made by the defendant payable to the order of the plaintiff. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, and the plaintiff was given leave to file an amended complaint upon payment of $10 costs. Upon the day set for hearing the plaintiff appeared, but refused to plead over, and judgment was entered dismissing the complaint, with costs. From that judgment and “each and every part thereof” the plaintiff appeals, and asks that the decision of the lower court in sustaining the demurrer be reviewed.

This we cannot do. The notice of appeal contains no reference to any order or interlocutory judgment, if one was entered upon the decision of the demurrer, and an appeal from a final judgment brings up for review “an interlocutory judgment or an intermediate order which is specified in the notice of appeal and necessarily affects the final judgment.” Section 1316, Code Civ. Proc. So far as the record before us appears, the judgment appealed from is correct.

Judgment affirmed, with costs.

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Bluebook (online)

114 N.Y.S. 784, 1 N.Y. Civ. Proc. R., (N.S.) 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-a-duerr-co-v-craven-nyappterm-1909.