People Ex Rel. Lorillard v. . Clyde

Per Curiam: The appeal in this case cannot be sustained. The order from which the appeal was taken reversed the order of the Special Term quashing the return, and directing that a peremptory mandamus issue, with liberty to the relator to demur or take issue upon the allegations of the return. No judgment could be entered upon the order, and it stands in the same position as an order denying a motion for judgment upon a demurrer as frivolous, or denying a motion to strike out an answer. No appeal lies from such an order. It does not determine the action, and is not final because the relator has liberty either to demur, or to traverse the return. Nor does it affect a substantial right, as there is no absolute right to the relief sought, and it was a question addressed to the discretion of the court whether it would grant the motion or leave the relator by demurrer or answer to take issue on the return. As has repeatedly been held, this court will not review a decision of this character. (Dabney v. Greeley, 12 Abb. Pr. N. S., 191; Wilkin v. Raplee, 52 N. Y., 248; Coit v. Seward, 50 N. Y., 17.) The appeal must therefore be dismissed with costs. All concur. Appeal dismissed.