Miller v. Sheldon , 22 N.Y. Sup. Ct. 220 ( 1878 )

Satmi, J.:

The Code of Civil Procedure does not authorize an appeal from an order overruling or sustaining a demurrer. In that respect it differs from the former Code, the 349th section of which, as amended in 1851, permitted an appeal from an order of that description. The remedy under the New Code is by appeal from the judgment, final or interlocutory, as the case may be, entered upon the decison of the issue of law raised by the demurrer. (See Throop’s note to § 1350, New Code.) But whether the judgment is final or interlocutory, an appeal can not be taken till the judgment is entered. The time for appealing' is thirty days after service of a copy of a judgment and written notice of entry thereof. (Code of Civil Procedure, § 1351.) No judgment has been entered in this case, and the appeal is therefore premature. The judgment authorized by the order of the Special Term is not a final judgment, as it must give the defendant leave to answer on the terms prescribed. Consequently it' -is an interlocutory judgment (Code of Civil Procedure, § 1200), and the right to appeal from it is given by section 1349 of the. Code of Civil Procedure, and until it is actually entered, and a copy of it is served with notice of entry, the twenty days within which to answer will not begin to run, and the right to appeal will not have accrued.

I think the motion should be granted, but as the question of practice involved is new, no costs should be given.

Present Talcott, P. J., Smith and NoxoN, JJ.

Motion to dismiss appeal granted, without costs.