Elwood v. . Roof , 82 N.Y. 428 ( 1880 )

The appeal to the General Term was from an order of the Special Term, directing judgment for the plaintiff on account of the frivolousness of the defendant's answer. An appeal lies to the General Term from such an order before the entry of judgment in pursuance thereof. In respect to an appeal to this court the rule is different.

The point that the direction appealed from is not an order, but a mere allocatur, is untenable. It is entitled as a Special Term order, and stated at foot to have been entered. It in effect adjudges the answer frivolous and the plaintiff to be entitled to judgment on the pleadings, and directs the entry of such judgment and a reference, etc.

The order of the General Term reversing the order of the Special Term is not appealable to this court. It was discretionary with the court below whether to pass upon the sufficiency of the answer on a motion for judgment, which is in substance a short demurrer, or to put the plaintiff to a regular demurrer.

The appeal should be dismissed with costs.

All concur.

Appeal dismissed.