Whiting v. . the Mayor, Etc., of New York

37 N.Y. 600

Opinion

In this case the appellants had, in the court below, demurred to the complaint. The demurrer being overruled, with leave to answer, they declined to answer, submitted to the judgment, and, on the affirmance in the General Term, appealed to this court. On the argument here, the appellants urged that, if the judgment should be affirmed, leave should now be given to them to answer the complaint. The court are unanimous in holding, that,

Where a pleading is sustained, the demurrer being overruled, and leave is given to answer the pleading, the demurrant is put to his election to answer over or submit to judgment; and if he submit to judgment, the judgment is final. If he appeal therefrom to this court, such appeal comes here on the question of affirmance or reversal only; and no leave to the demurrant to answer or plead anew can be given. The judgment here is absolutely final.