Wiesenberg v. Rosenberg

Per Curiam:

This is an appeal from an order of the Municipal Court sustaining a demurrer to the plaintiff’s complaint. The order appealed from is merely an indorsement upon the summons of the words: “ Demurrer sustained.” No formal order and no interlocutory judgment is in the record. This court has repeatedly held that no appeal will lie from an order of this character. Smith v. Ely, 46 Misc. Rep. 458; Muttart v. Muttart, 93 N. Y. Supp. 468; Kemp v. Tonnele Co., 51 Misc. Rep. 49; Brown v. Reiter, id. 646; Siegel v. Cantwell, 132 N. Y. Supp. 1146; Binder v. Robinson, 59 Misc. Rep. 155; McManus v. McManus, 150 N. Y. Supp. 87.

Section 334 of the Municipal Court Act provides: “ Where a judgment is rendered on the trial of a demurrer,- the prevailing party shall recover costs, etc.” This clearly intimates that a judgment, without calling it interlocutory or final, is contemplated; and section 145 provides that, “ where a demurrer is interposed and disallowed, the court must, notwithstanding the return day has passed, grant leave to plead as if no - demurrer had been interposed. ’ ’ Such disposition of a demurrer is necessarily interlocutory in its nature. It cannot be a final judgment, else there would be no leave given to plead over; and, as an appeal will lie from such orders only as are mentioned in sections 253-256 of the Municipal Court Act, it follows that before an appeal can be taken a judgment must be entered.

Present: G-uv, Bijue and Page, JJ.

Appeal dismissed, with ten dollars costs;