Bryan v. Viele , 4 N.Y. St. Rep. 890 ( 1886 )

Barnard, P. J.

The amended pleading was a substitute for the original one, and when it was put in under the order sustaining the demurrer to it, and by force of the leave contained in the order, the defendant lost all right to appeal from the order sustaining the demurrer. He accepted the benefit of the order, and he cannot, in this case, both amend the complaint and appeal from the order, making such an amendment necessary.

The motion to dismiss the appeal should therefore, be granted, with ten dollars costs.

Pratt and Dykman, JJ., concur.