Bentley v. Jones
New York Supreme Court
Before Justices Watson, Parker and Wright. A demurrer had" been interposed to a part of a reply. On argument before Mr. Justice Harris, at special term, judgment was given for the defendant, with leave to the plaintiff to amend on payment of costs. The remaining issue of fact was undecided. Within the time limited for amending, the plaintiff appealed from the judgment on the demurrer.
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Before Justices Watson, Parker and Wright. A demurrer had" been interposed to a part of a reply. On argument before Mr. Justice Harris, at special term, judgment was given for the defendant, with leave to the plaintiff to amend on payment of costs. The remaining issue of fact was undecided. Within the time limited for amending, the plaintiff appealed from the judgment on the demurrer. The defendants moved to dismiss the appeal, on the ground that judgment had not been perfected at the time of the appeal.
1Opinion of the Court
By the Court, Parker, Justice.
The first question presented is, whether the decision was an order and might be appealed from as such, under section 349 of the code.
Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order, (§ 400.) A judgment is the final determination of the rights of the parties in the action, (§ 245.) In the language of the code, the argument of the demurrer was a trial. A trial is the judicial examination of issues, whether they be of law or of fact, (§§ 252, 255.) And issues of law must be first tried, unless…
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