Lewis v. Acker
New York Supreme Court
The defendant demurred to the plaintiff’s reply, and judgment was rendered at the special term, for the defendant, on the demurrer, with leave to plaintiff to amend on payment of costs, &c., within twenty days. No judgment has in fact been entered up. The plaintiff appeals from the decision as an order.
1Opinion of the Court
By the Court—Barculo, P. Justice.
We have already decided this question as respects a frivolous demurrer in Bruce agt. Pinckney, (ante page 397.) But it is supposed that the cases are essentially different, and we will therefore give our reasons more fully in the present case.
It has always been considered that a decision of a demurrer was a judgment, whether it was absolute, or whether it gave leave to amend. If it was for the plaintiff, it authorized him to recover his demand, unless within twenty days the defendant availed himself of the privilege to amend. If it was for the defendant upon…
2Cases cited1 opinion
- Rankin v. HoytSupreme Court of the United States · 1845
3Cited by2 opinions
- St. Paul Division No. 1, Sons of Temperance v. BrownSupreme Court of Minnesota · 1864
- Smith v. ThompsonAppellate Division of the Supreme Court of the State of New York · 1907