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Sidney L. Wiesenberg v. Walter Rosenberg, Jerome Rossenberg and " John Doe," the Name " John Doe," being Fictitious, Real Name Unknown to all the Persons Herein being Co-partners, and Owners of the Business in the Premises Known as Savoy Theatre, at 112 West 34th Street, New York City
Per Curiam:
This is an appeal from an order of the Municipal Court sustaining a demurrer to the plaintiff’s complaint. The order appealed from is merely an indorsement upon the summons of the words: “ Demurrer sustained.” No formal order and no in
[92] terlocutory judgment is in the record. This court has repeatedly held that no appeal will lie from an order of this character. Smith v. Ely, 46 Misc. Rep. 458; Muttart v. Muttart, 93 N. Y. Supp. 468; Kemp v. Tonnele Co., 51 Misc. Rep. 49; Brown v. Reiter, id. 646; Siegel v. Cantwell, 132 N. Y. Supp. 1146; Binder v. Robinson, 59 Misc. Rep. 155; McManus v. McManus, 150 N. Y. Supp. 87.
Section 334 of the Municipal Court Act provides: “ Where a judgment is rendered on the trial of a demurrer,- the prevailing party shall recover costs, etc.” This clearly intimates that a judgment, without calling it interlocutory or final, is contemplated; and section 145 provides that, “ where a demurrer is interposed and disallowed, the court must, notwithstanding the return day has passed, grant leave to plead as if no - demurrer had been interposed. ’ ’ Such disposition of a demurrer is necessarily interlocutory in its nature. It cannot be a final judgment, else there would be no leave given to plead over; and, as an appeal will lie from such orders only as are mentioned in sections 253-256 of the Municipal Court Act, it follows that before an appeal can be taken a judgment must be entered.
Present: G-uv, Bijue and Page, JJ.
Appeal dismissed, with ten dollars costs;