Drummond v. Husson
The Superior Court of New York City
Tim court, at the General Term in October, had affirmed the decision of the judge at special term, overruling a demurrer to the defendant’s answer. The demurrer, however, related only to a part of the answer, and it was overruled by an order and not by a judgment. On the settlement of the order or judgment of affirmance, a question arose as to the costs to be allowed to the defendant upon the appeal.
1Opinion of the CourtBosworth, J.
The second subdivision in § 349 of the Code as last amended, gives an appeal from an order, sustaining or overruling a demurrer, but I do not understand this provision as converting a decision upon a demurrer, in all cases, from a judgment into a mere order. When a demurrer is sustained which goes to the whole complaint or answer, the decision, as it determines that the party against whom it is given has no' right of action or no defence, is in its nature a final judgment, and this is so even when liberty to amend is given, if the party fail to avail himself of the privilege within the…
2Cited by3 opinions
- Mora v. Sun Mutual InsuranceThe Superior Court of New York City · 1861
- Hoffman v. BarryNew York Supreme Court · 1874
- Hoffman v. BarryNew York Supreme Court · 1874