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 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 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 the Special Term was reversed, with ten dollars costs, and the demurrer was sustained, with leave to the plaintiff to amend, upon paying costs of demurrer, and ten dollars costs of the appeal.
1Opinion of the Court
Boardman, J.:
An appeal may be taken from an order sustaining or overruling a demurrer to an entire pleading.* 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, subdivision 5.
But when leave is granted to amend a defective pleading, or to withdraw demurrer and plead, it becomes an interlocutory order until…
2Cases cited4 opinions
- Eyre v. PotterSupreme Court of the United States · 1854
- Clark v. President of the Manufacturers' InsuranceSupreme Court of the United States · 1850
- Drummond v. HussonThe Superior Court of New York City · 1852
- Paddock v. . the Springfield Fire and Marine Insurance Co.New York Court of Appeals · 1855