Witherhead v. Allen
New York Supreme Court
THIS was an appeal from a judgment entered in pursuance of an order made by a justice of the court at chambers, directing judgment for the plaintiff on account of the frivolousness of the demurrer, under section 247 of the code. The action was against ten defendants, and the complaint averred that said defendants, during the year 1857, were members of, and stockholders in, a joint stock company or association, known as the “ Ontario and St. Lawrence Steam Boat Company.”
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THIS was an appeal from a judgment entered in pursuance of an order made by a justice of the court at chambers, directing judgment for the plaintiff on account of the frivolousness of the demurrer, under section 247 of the code. The action was against ten defendants, and the complaint averred that said defendants, during the year 1857, were members of, and stockholders in, a joint stock company or association, known as the “ Ontario and St. Lawrence Steam Boat Company.” That during and before October, of that year, and while the defendants were members thereof, the said company became…
1Opinion of the Court
By the Court, James, J.
It is first insisted, that “ the order directing final judgment, is erroneous; that the judge has only power to adjudge the demurrer frivolous, leaving the parties precisely as if no pleading had been interposed.”
Whether a decision, under § 247, is an order or judgment, has given rise to many conflicting opinions, as well as adjudications, both at special and general terms. The better opinion seems to be, and the majority of cases so hold, that such a decision is a judgment upon an issue of law, and not an order simply,- from which alone an appeal can be taken. (King v.…
2Cases cited9 opinions
- Corning v. BurdenSupreme Court of the United States · 1854
- Allen v. SewallNew York Supreme Court · 1829
- Harger v. McCulloughNew York Supreme Court · 1846
- United States v. BrooksSupreme Court of the United States · 1851
- Slee v. BloomCourt for the Trial of Impeachments and Correction of Errors · 1822
4 more not listed; retrieve them via the Exa API.
3Cited by7 opinions
- Brugman v. McGuireSupreme Court of Arkansas · 1878
- Mayor of New York v. LyonsNew York Court of Common Pleas · 1863
- Conklin v. FurmanNew York Supreme Court · 1865
- Smith v. ThompsonAppellate Division of the Supreme Court of the State of New York · 1907
- George v. DayThe Superior Court of New York City · 1864
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