George v. Day , 3 Rob. 650 ( 1864 )

By the Court, Monell, J.

This is an appeal from an order¡ The defendant demurred to the complaint. The plaintiff moved for judgment on account of the frivolousness of the demurrer, under section 247 of the Code; The motion was granted, and the defendant appealed.

The order does not overrule a demurrer, and an appeal cannot, therefore, be taken, under subdivision 2, of section 349, of the Code. Uor does it-come within subdivision 4, of the same section. In this class of cases “judgment ” is ordered against the demurring party, and judgment must accordingly he entered, the demurrer and order for judgment forming a part of the judgment roll.

The “ order ” appealed from is not a judgment. The plaintiff’s damages must he assessed, and costs adjusted, when a judgment in form, as upon a failure to answer, is entered by the clerk. This has not been done in the case before us ; and the appeal is therefore without authority. (Harris v. Hammon, 18 How. Pr. 123. Briggs v. Bergen, 23 N. Y. Rep. 162.)

We have not looked into the merits of the demurrer, as we cannot entertain the appeal from the order. When judgment is entered, the defendant can appeal and have the decision at' special term reviewed upon that appeal.

The appeal must be dismissed, with $10 costs.