Everett v. Usona Stamping Works

BIJUR, J. The interlocutory judgment provided that the defendant could answer, if he so elected, on March 28th, on paying costs. On that date defendant paid costs and answered, and also appealed from the interlocutory judgment. By answering he must be taken to have abandoned his demurrer, and, consequently, can take no further steps on it. Brown v. Saratoga R. R. Co., 18 N. Y. 495; Wheelock v. Lee, 74 N. Y. 495; Greenwood v. Brink, 1 Hun, 227. This appeal, therefore, must be dismissed, with $10 costs, and the defendant remitted to a trial on the merits. All concur.