Ellison v. Sun Printing & Publishing Ass'n

41 A.D. 594, 59 N.Y.S. 970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Ingraham, J.:

• As it was conceded by counsel for both parties upon this argument that subsequent to the entry of the order appealed from a demurrer had been interposed to the complaint in this action and such demurrer sustained, with leave to the plaintiff to amend the complaint, it would seem that there is nothing upon the appeal for the court to review. An appeal from an order relating to the form of the pleading falls when the pleading itself is adjudged bad upon demurrer. If the plaintiff had desired to review the action of the court below in striking out this allegation, he should have brought his appeal on for argument before the trial of the issue of law on the demurrer. As counsel for both parties concede upon the argument that such demurrer has been interposed and sustained, the appeal should be dismissed, but as no formal motion to dismiss the appeal was made, without costs.

Barrett, Rumset and McLaughlin, JJ., concurred.

Appeal dismissed, without costs.