30 N.Y.S. 799 | N.Y. Sup. Ct. | 1894
It has been repeatedly held in this court and in the court of appeals that an appeal from an order sustaining-■ or overruling a demurrer is not permitted by the Code; the appeal must be from the judgment. Therefore, so much of the appeal as is from the order overruling the demurrer must be dismissed, with $10 costs.
The appeal from the judgment brings up the question as to whether the new matter contained in the answer was sufficient to. constitute a defense to the cause of action set out in the complaint.. It appears that one Thomas L. Sheffield, in February, 1889, filed a. notice of a lien in the county clerk’s office in the city and county of
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide event. All concur.
See Sheffield v. Early (Sup.) 25 N. Y. Supp. 1098.