Ives v. Miller
New York Supreme Court
THIS was an appeal from an order made at a special term, overruling a demurrer. The action was on a note for $706.74, given by the defendant, dated on the 22d day of ¡November, 1853, and payable with interest to the plaintiff, or order, at the Bank of Malone, on the 15th day of May, 1854. The summons and complaint were dated the 24th of May, 1854. The answer admitted the making of the note, and claimed a set-off of an indebtedness from the plaintiff to the defendant for…
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THIS was an appeal from an order made at a special term, overruling a demurrer. The action was on a note for $706.74, given by the defendant, dated on the 22d day of ¡November, 1853, and payable with interest to the plaintiff, or order, at the Bank of Malone, on the 15th day of May, 1854. The summons and complaint were dated the 24th of May, 1854. The answer admitted the making of the note, and claimed a set-off of an indebtedness from the plaintiff to the defendant for money paid to the plaintiff; board, washing, &c. furnished to him; goods, &e. sold and delivered to him; and for work and…
1Opinion of the Court
By the Court,
Hand, P. J.
Ho judgment having been entered up, it is objected that the appeal is premature. The demurrer is to a part only of the answer, and leave to amend was given. I had susposed it to be settled that an appeal from an order would lie in such a case. (2 Whitt. Pr. 200, 2d ed.) And in this district, under, the 2d subdivision of § 349 in its present form, I believe we have invariably held that where a demurrer has been sustained or overruled, the appeal in all cases may be as from an order, if judgment has not been actually entered up. King v. Stafford, (5 How. Pr. Rep. 30; S.…
2Cases cited10 opinions
- Lindsay v. Jackson & McJimpseyNew York Court of Chancery · 1831
- Buchan v. SumnerNew York Court of Chancery · 1847
- Westerlo v. EvertsonNew York Supreme Court · 1828
- Evans v. EvansNew York Court of Chancery · 1841
- Lentilhon v. Mayor of New YorkThe Superior Court of New York City · 1851
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3Cited by9 opinions
- Arnold v. SinclairMontana Supreme Court · 1892
- Pendleton v. BeyerWisconsin Supreme Court · 1896
- Martin v. StubbingsAppellate Court of Illinois · 1886
- Linderman v. DisbrowWisconsin Supreme Court · 1872
- Ludlum v. WagnerAppellate Division of the Supreme Court of the State of New York · 1925
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