Everett v. Usona Stamping Works

Appellate Terms of the Supreme Court of New York

Everett v. Usona Stamping Works

123 N.Y.S. 106

Appellate Terms of the Supreme Court of New York·Decided May 17, 1910·Published

Opinion

BIJUR, J.

The interlocutory judgment provided that the defendant could answer, if he so elected, on March 28th, on paying costs. On that date defendant paid costs and answered, and also appealed from the interlocutory judgment. By answering he must be taken to have abandoned his demurrer, and, consequently, can take no further steps on it. Brown v. Saratoga R. R. Co., 18 N. Y. 495; Wheelock v. Lee, 74 N. Y. 495; Greenwood v. Brink, 1 Hun, 227.

This appeal, therefore, must be dismissed, with $10 costs, and the defendant remitted to a trial on the merits. All concur.

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BIJUR, J.

The interlocutory judgment provided that the defendant could answer, if he so elected, on March 28th, on paying costs. On that date defendant paid costs and answered, and also appealed from the interlocutory judgment. By answering he must be taken to have abandoned his demurrer, and, consequently, can take no further steps on it. Brown v. Saratoga R. R. Co., 18 N. Y. 495; Wheelock v. Lee, 74 N. Y. 495; Greenwood v. Brink, 1 Hun, 227.

This appeal, therefore, must be dismissed, with $10 costs, and the defendant remitted to a trial on the merits. All concur.

Everett v. Usona Stamping Works, 123 N.Y.S. 106 (N.Y. Ct. App. 1910).

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