Hoffman v. Barry
New York Supreme Court
Motion by defendant to correct order of general term so as to allow defendant full costs on appeal to this court. The action was brought by George Hoffman and another against Daniel Barry. The defendant demurred to the complaint. The demurrer was overruled at special term, with leave to defendant to answer on payment of costs of demurrer. The defendant appealed to this court from such order.
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Motion by defendant to correct order of general term so as to allow defendant full costs on appeal to this court. The action was brought by George Hoffman and another against Daniel Barry. The defendant demurred to the complaint. The demurrer was overruled at special term, with leave to defendant to answer on payment of costs of demurrer. The defendant appealed to this court from such order. The order of special term was reversed, with $10 costs, and the demurrer sustained, with leave to plaintiff to amend upon paying costs of the demurrer, and $10 costs of appeal.
1Opinion of the CourtBoardman, J.
An appeal may be taken from an order sustaining or overruling a demurrer to an entire pleading. Code, § 349, subd. 2. When such an order—that is one simply sustaining or overruling the demurrer—is entered, it is substantially a judgment, because thereby the successful party is entitled to judgment thereon. On appeal from such an order, or, more properly, the judgment to be entered thereon, the successful party is entitled to full costs under section 307, subd. 5.
But when leave is granted to amend a defective pleading or to withdraw demurrer and plead, it becomes an interlocutory order until…
2Cases cited7 opinions
- Eyre v. PotterSupreme Court of the United States · 1854
- Clark v. President of the Manufacturers' InsuranceSupreme Court of the United States · 1850
- John W. Paup v. Thomas S. DrewSupreme Court of the United States · 1851
- Ives v. MillerNew York Supreme Court · 1855
- Drummond v. HussonThe Superior Court of New York City · 1852
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