Fink v. Standard Bread Co.

Appellate Terms of the Supreme Court of New York

Decided May 15, 1908

Appellate Terms of the Supreme Court of New York · decided 1908-05-15

<p>Courts—Municipal Courts—Appeal — Decisions Review able — Judgment Overruling Demurrer.</p> <p>No appeal lies from an order on a demurrer, but only from the judgment entered thereon; and where no judgment appears in the record, where a demurrer to a complaint was overruled, no appeal will lie, though the notice of appeal recites that it is taken from the judgment rendered against defendant and from the order overruling the demurrer to the complaint therein, upon which the said judgment was entered, and although there is attached to the return a statement by the justice who tried the .case, but who is now out of office, that he entered judgment on said order overruling the demurrer.</p>

Dismissed · Decided 1908-05-15

PER CURIAM.

¶1The notice of appeal in each of these cases recites that they are taken from “a judgment rendered against it in the above-entitled action in favor of the plaintiff, … and from the order overruling the demurrer to the complaint therein, upon which *206the said judgment was entered.” Although there is attached to each return a statement by the justice who tried the case, but who is now •out of office, to the effect that he “entered judgment on said order overruling the demurrer,” no such judgment appears in the record. It has frequently been held that no appeal lies from an order overruling or sustaining a. demurrer, "but that a judgment must bé entered upon such order, and from the judgment so entered the appeal can be taken. Sheffield v. Murray, 80 Hun, 555, 30 N. Y. Supp. 799; Smith v. Ely, 46 Misc. Rep. 458, 92 N. Y. Supp. 310.

¶2Appeals dismissed, with $10 costs in one case.