Cook v. Pomeroy

In Bauman agt. The New-York Central Railroad Company, (ante, p. 218,) decided at the present term, we held, that an appeal, as from an-order under § 349 of the Code, from a decision upon a trial at special term, ordering judgment for the defendants upon a demurrer to the entire complaint, no leave to amend being given, was not warranted ; that the decision was a judgment, and an appeal could be taken from it only as such. We also expressed the opinion in that case, and briefly stated the reasons therefor, although the points were not presented, as they are distinctly in this case, that the provision of the section allowing an appeal “ from an order made at a special term,” &c., “when it sustains or overrules a demurrer,” is applicable to all cases where leave to amend is given in connection with the decision on the demurrer, and also to decisions on demurrer to part only of a complaint or answer, containing several alleged causes tif action or defences. To that opinion we adhere; and it follows, that the objection to the appeal in this case is not well taken.

Objection to the appeal, as not warranted, overruled.