Church v. American Rapid Telegraph Co.

15 Jones & S. 558

• Court: The Superior Court of New York City
• Decided: February 7, 1881
• Status: Published

Opinion

In the first of above cases final judgment was entered pursuant to an order overruling a demurrer to the complaint, with costs, with leave to answer. The defendant not having availed itself of the privilege, an appeal was taken from the judgment; but the notice of appeal did not specify that the order was also-appealed from. On this ground the judgment was affirmed, with costs, the court citing Cameron v. Equitable Life Ins., 45 N. Y. Super. Ct. 628.

Opinion per Curiam.

E. Luther Hamilton, for appellant.

Erastus New, for respondent.

In the second of the above cases an order was made overruling a demurrer to the complaint, with leave to defendant to withdraw the demurrer and answer. An appeal was taken from the order.

The appeal was dismissed, with costs, on the ground that it would not lie.

The court cited Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514; Garner v. Harmony Mills, 45 Super. Ct. 148.

■ Opinion by Truax, J.; Freedman, J., concurred.

Subsequent to this decision there was entered what was called an interlocutory judgment, from which an appeal was taken, the decision wherein will be found below.

Sutherland & Scott, for appellant.

Billings <6 Cardozo, for respondent.

In the third of above cases final judgment was entered upon an order sustaining plaintiff’s demurrer to the answer.

An appeal was taken from the judgment; but the notice did not specify that the order was also appealed from, and it was held that the judgment should for this cause be affirmed.

The court cited the above cases.

Opinion by Freedman, J.; Sedgwick, Oh. J., and Truax, J., concurred.

Edward H. HawTcs, for appellant.

Charles E. Crowell, for respondent.

In the last of above cases there was a demurrer to the complaint. The following order was entered :

“The above entitled action having been duly brought to trial upon the issue of law joined herein by the defendant, the New York Cotton Exchange, after hearing Francis M. Scott, Esq., of counsel for the said defendant, in support of said demurrer, and Michael H. Cardozo, of counsel for the plaintiff, in opposition thereto,

“Upon motion of Billings & Cardozo, plaintiff’s attorneys,

“It is ordered, that said demurrer be, and the same hereby is overruled, and that the plaintiff have judgment thereon; but with leave to the said defendant to withdraw his said demurrer and answer within twenty days, on payment of costs.

“And it is hereby further ordered and directed that if the said defendant fails to comply with the terms hereby imposed, that final judgment in favor of the plaintiff and against the defendant for the relief demanded in the complaint, be entered herein, with costs.”

Upon this the following was also entered.:

[ Title of the cause. ]

“The above entitled cause having duly come on for trial upon the issue of law raised by the demurrer of the defendant, the Hew York Cotton Exchange, at a special term of this court, held on the first Monday of January, 1881, Hon. John Sedgwick, Chief Justice, presiding, and a decision having been duly rendered on the 11th day of January, 1881, overruling said demurrer and directing that plaintiff have judgment thereon, but with leave to the said defendant, the Hew York Cotton Exchange, to withdraw its said demurrer and answer within twenty days on payment of costs, and the costs of the said plaintiff having been duly taxed at $62.41,

“ How, on motion of Billings & Cardozo, plaintiff’s attorneys,

“ It is adjudged that said demurrer of the said defendant, the Hew York Cotton Exchange, be and the same hereby is overruled; and that the plaintiff, Malcolm Campbell, as receiver of the property of Daniel W. Talcott, recover of the defendant, the Hew York Cotton Exchange, the sum of $62.41 costs, but with leave to the said defendant to withdraw its said demurrer and answer within twenty days, upon the payment of said costs.

“Dated April 21, 1881.”

An appeal was taken by the following notice:

“Please to take notice that the defendant the Hew York Cotton Exchange hereby appeals to the general term of this court from the judgment entered herein on the 21s D day of April, 1881, overruling the demurrer interposed by said defendant to the complaint of the plaintiff, and from each and every part of said judgment.

‘1 Dated New York, April 27th, 1881.”

Sutherland & Scott, for appellant.

Billings & Qardozo, for respondent.

By the Court.—Freedman, J.—This

is an appeal from an interlocutory judgment overruling defendant’s demurrer to the complaint, with costs, but with leave to withdraw the demurrer and answer upon payment of said costs. This is not a final judgment (Cameron v. The Equitable Life Assurance Society, &c., 45 N. Y. Super. Ct. 628; and 46 Id. 84). Moreover, the judgment appealed from conforms to the order directing its entry, and as the notice of appeal does not ask for a review of the order, the judgment, even if it were a final one, would for that reason have to be affirmed.

The judgment should be affirmed, with costs.

Speir, J., concurred.