Adams v. . Fox
New York Court of Appeals
Motion to dismiss appeal. The defendant, P. Gr. Fox, demurred to the complaint. The judge at the. special term held the demurrer not-well taken, and gave judgment for thb plaintiff, with leave to the defendant to withdraw the demurrer and answer. On appeal to the general term, the order was reversed,. and judgment on the demurrer Was given for the defendant, with leave to the plaintiff to amend the complaint.
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Motion to dismiss appeal. The defendant, P. Gr. Fox, demurred to the complaint. The judge at the. special term held the demurrer not-well taken, and gave judgment for thb plaintiff, with leave to the defendant to withdraw the demurrer and answer. On appeal to the general term, the order was reversed,. and judgment on the demurrer Was given for the defendant, with leave to the plaintiff to amend the complaint. The plaintiff appealed here from this order, no judgment in the action having been entered, so far as appeared. The papers on which the motion to dismiss was made were the case made on…
1Opinion of the Court
Denio, Ch. J.
It is objected that this motion cannot be entertained, because the return has not been filed, and it is urged that until this is done, this court is not possessed of the case. But we think that when a notice of appeal has been served, and the j) roper undertaking perfected, the case is so far removed from the subordinate court, that we can entertain any application, which the case, in its then condition, may render necessary. Our general rules are based upon that idea, for they allow an order to dismiss an appeal for a default in filing the return.
The appeal which was attempted…
2Cited by10 opinions
- Brinkley v. . BrinkleyNew York Court of Appeals · 1871
- Abbey v. . WheelerNew York Court of Appeals · 1902
- Elwell v. . JohnsonNew York Court of Appeals · 1878
- Howey v. Lake Shore & Michigan Southern Railway Co.New York Supreme Court · 1896
- Cutting v. JessmerAppellate Division of the Supreme Court of the State of New York · 1905
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