¶1The appeal is prema ture, as no judgment has been entered in the action.
¶2The Code gives an appeal from the special to a general term of the supreme court, from an order sustaining or overruling a demurrer (Code, § 349). But in defining and regulating the jurisdiction of this court, there is no similar provision.
¶3The decision of the supreme court upon the demurrer cannot be reviewed except by an appeal from the judgment, and upon such appeal any intermediate order involving the merits, and necessarily affecting the judgment, may be reviewed (Code, § 11). The order is *140not included in any of the classes of orders from which an appeal is allowed to this court. Final judgment upon the demurrer must be given before it can be reviewed here (Adams v. Fox, 27 N. Y., 640; Paddock v. Springfield Fire & Marine Ins. Co., 12 N. Y. [2 Kern.], 591).
¶4The appeal must be dismissed, with costs of the appeal to the time of the motion.
¶5All the judges concurred.
¶6Appeal dismissed, with costs.