Quereau v. Brown

17 N.Y.S. 644, 70 N.Y. Sup. Ct. 175, 43 N.Y. St. Rep. 422, 63 Hun 175, 1892 N.Y. Misc. LEXIS 423

• Court: New York Supreme Court
• Decided: February 8, 1892
• Status: Published

Opinion

Dykman, J.

This is an appeal from an order directing final judgment in favor of the plaintiff against the defendant Henry L. Brown, who demurred to the plaintiff’s complaint. The demurrer was overruled, with leave to the ■defendant to answer within 20 days on payment of costs. An order to that ■effect was entered, but no interlocutory judgment. The defendant did not answer within the 20 days after the service of the order, and thereupon the plaintiff made motion for final judgment against the defendant Brown, which was granted, and this appeal is from that order. The order is erroneous. The defendant desired to appeal from the decision overruling the demurrer, but could not do so until an interlocutory judgment was entered. . The decision upon the demurrer granted the defendant leave to answer, and required an intermediate judgment, and the defendant was not in default until such judgment was entered. Code Civil Proc. § 1021; Liegeois v. McCrackan; 22 Hun, 69; Rum. Pr. 236, 237; Gray v. Rothschild, 13 Civil Proc. R. 359. Under the old Code the appeal could be taken from the order, but now that is changed, and the appeal must be fiom the judgment. Gray v. Rothschild, supra; Bank v. Bussell, 14 Abb. N. C. 99; Bank v. Lynch, 76 N. Y. 514. The order should be reversed, with $10 costs and disbursements, and the motion should be denied, with $10 costs.