Ferris v. Aspinwall

10 Abb. Pr. 137

• Court: New York Court of Appeals
• Decided: March 15, 1871
• Status: Published

Opinion

By the Court.—Allen, J.

The appeal is prema ture, as no judgment has been entered in the action.

The Code gives an appeal from the special to a general term of the supreme court, from an order sustaining or overruling a demurrer (Code, § 349). But in defining and regulating the jurisdiction of this court, there is no similar provision.

The decision of the supreme court upon the demurrer cannot be reviewed except by an appeal from the judgment, and upon such appeal any intermediate order involving the merits, and necessarily affecting the judgment, may be reviewed (Code, § 11). The order is not included in any of the classes of orders from which an appeal is allowed to this court. Final judgment upon the demurrer must be given before it can be reviewed here (Adams v. Fox, 27 N. Y., 640; Paddock v. Springfield Fire & Marine Ins. Co., 12 N. Y. [2 Kern.], 591).

The appeal must be dismissed, with costs of the appeal to the time of the motion.

All the judges concurred.

Appeal dismissed, with costs.