Thompson v. Schieffelin

Hyatt, J. This is an appeal from an order made at special term, overruling a demurrer to the complaint as frivolous, and granting judgment, with the privilege to the defendant to plead anew, which by this appeal he declines to accept. An appeal does not lie from this order. The decision was, as urged by the appellant, under section 1021, Code of Civil Procedure, under which the rule was settled by the court of appeals in the case of The Cambridge Valley National Bank agt. Lynch (76 N. Y., 514), wherein the court held that under this Code, as under the former Code, the decision of the court overruling or sustaining a demurrer was an order and not an interlocutory judgment, and that this Code did not provide for any appeal therefrom; the remedy is, therefore, by appeal from the judgment, final of interlocutory, entered upon the demurrer. The unsuccessful party may, if the successful party neglects to enter the proper judgment, enter it himself in order to appeal therefrom (Wilson agt. Simpson, 84 N. Y., 674). In this case the defendant' not only declines to plead anew, but also either to enter the judgment as directed, or permit the plaintiff to do so, having stayed all action on his part in the premises. If the order is not appealable, it is unnecessary to consider whether or not the demurrer is frivolous. The appeal must be dismissed, with costs. Hall, J., concurs.