Lacustrine Fertilizer Co. v. Lake Guano & Shell Fertilizer Co. , 23 N.Y. Sup. Ct. 484 ( 1879 )

Smith, J. :

The Code of Civil Procedure does not authorize an appeal from an order overruling or sustaining a demurrer. The remedy at the present time is by appeal from the judgment, final or interlocutory, as the case may be, entered upon the decision of the issue of law presented by the demurrer. In that respect the new Code differs from the former one, and abrogates the right to appeal from an order of that description, which was introduced by an amendment of section 349, adopted in 1851. The object of the change and the provisions of the new Code by which it has been accomplished are pointed out in Mr. Throop’s note to section 1350, of the Code of Civil Procedure. One or two provisions of the Code as framed, which indicated very clearly the pui'pose of the commissioners to effect the change above stated have been altered by the Legislature, but the plan is not thereby materially interfered with. Section 1201, which so defined an interlocutory judgment as to include the determination of the court 'upon a demurrer was enacted in 1876, as reported by the commissioners, and was expunged in 1877 ; and section 1224, which as reported and adopted in 1876, gave discretionary power to the General Term, upon a partial or entire affirmance of an interlocutory judgment, on appeals where no issue of fact remains to be tried, to render final judgment, unless it permits the appellants to amend or plead over, was changed in the following year by substituting the words “order or judgment,” for “ interlocutory judgments.” It can hardly be supposed that these changes indicate a purpose to return to the former practice. The provisions of section 349 of the old Code, as amended in 1851, was not restored, and section 1349 of the new Code stands, providing for an appeal to the General Term from an interlocutory judgment rendered at a Special or Trial Term. The conclusion above indicated is fortified by other provisions of the new Code relating to proceedings subsequent to the decision of the General Term, on an appeal from an interlocutory judgment. Section 1336 provides that when final judgment is rendered in the court below, after the affirmance, upon an appeal to the General Term of that court, of an interlocutory judgment, the party aggrieved may appeal directly from the final judgment to the Court of Appeals, notwithstanding that it was rendered at a special or trial term. The same section provides that such an appeal brings up for review only the determination of the General Term, ■ affirming the' interlocutory judgment. An appeal to review the final judgment in such case may be taken to the General Term, but on such appeal the interlocutory judgment cannot be reviewed. (Section 1350.) But upon an appeal to the Court of Appeals from the determination of the General Term uj)on the appeal from the final judgment, the determination of the General Term affirming the interlocutory judgment may be reviewed. (Section 1350.) The difficulties existing under the former practice, which the provisions above referred to were designed to remove, are stated in Mr. Throop’s note to section 1350. The object of these provisions would be frustrated, in a great measure, by allowing an appeal from an order sustaining or overruling a demurrer, as they would not apply to such an appeal. The present Code provides for the entering of an interlocutory, as well as of a final judgment (§ 1236), and directs that an appeal must be taken within thirty days after service of a copy of the judgment and notice of entry. (Section 1351.)

We have already held in accordance with these views in two cases (Miller v. Sheldon^* and Riggs v. The American Tract Society)^† decided that term; but, as they have not been reported, we have thought it due to the present case to give the reason for our decision.

The appeal must be dismissed, but without costs.

Talcott, P. J., and Hardin, J., concurred.

Appeal dismissed without costs.

* Reported in 15 Ilun, 220.

† Deoided upon opinion in Miller v: SJieldon