
    COURT OF APPEALS.
    Mary E. Stoughton, plaintiff and respondent, agt. Samuel A. Lewis, impleaded, &c , defendant and appellant.
    
      Practice —Appeal—When motion to dismiss appeal to court of appeals may he made where case is on the calendar.
    
    The court of appeals will entertain a motion to dismiss an appeal for which there is no foundation, without waiting until the case is reached in its regular order on the calendar.
    A plaintiff is not precluded from making a motion to dismiss an appeal taken by a defendant, because he (the plaintiff) has noticed the case for argument and placed it upon the calendar. He waives nothing by so-doing. It is still optional with him to wait until the case is reached on the calendar, or to make his motion to dismiss on the ground that the-appeal is unauthorized.
    Where, in an action to foreclose a mortgage, a complaint containing all the requisite allegations has been served upon defendant, who afterwards obtained a stipulation from plaintiff’s attorney for further time to answer, agieeing not to put in any answer and not to ask any further extension of time. On the last day defendant served a demurrer which was, on motion, overruled and stricken out, and plaintiff proceeded as-if no demurrer or answer had been interposed and obtained his judgment by default. The defendant appealed to the general term, where it was affirmed, and from the affirmance defendant appeals to this court i
    
    
      Held, that, the demurrer having been overruled, the judgment went by default in the same manner as if no demurrer had been served, and no-appeal is allowed from a judgment entered by default. The order overruling the demurrer not having been appealed from cannot be-assailed on an appeal merely from the judgment.
    
      Decided February, 1885.
    Motion to dismiss an appeal. The facts are sufficiently stated in the opinion.
    
      Augustus Haviland, for plaintiff and respondent.
    1. The service of the demurrer was a clear violation of the stipulation and, therefore, properly stricken out (People agt. Stephens, 52 N. Y., 306; Townsend agt. The Masterson, &c., Co., 15 N. Y., 588; Cox agt. N. Y. Cent., &c., R. R. Co., 63 
      N. Y., 414). 2. The demurrer was clearly frivolous and interposed in bad faith to delay the prosecution of this action, and' judgment was properly granted thereon (Code of Civil Pro., sec. 537; Kay agt. Whittaker, 44 N. Y., 565 ; Osgood agt. Whittlesey, 10 Abb. 134). 3. No appeal is allowed from a judgment entered by default. The demurrer having been overruled, the judgment went by default against the defendant in the same manner as if no demurrer had been served (Innis agt. Purcell, 58. N. Y., 388; Briggs agt. Bergen, 23 N. Y., 162). 4. The appeal should be dismissed, with costs, and as the defense and appeals were entirely without merit and interposed for delay, to the great damage of the respondent, she should be allowed extra damages in this court under Code of Civil Procedure (sec. 3251, sub 5).
    
      Franklin Bein, for plaintiff, appellant.
   Earl, J.

This was an action to foreclose a mortgage and a complaint containing all the requisite allegations, for such an action was served upon the defendant Lewis. Thereafter he ■obtained a stipulation from plaintiff’s attorney for further time to answer, agreeing at the same time that he would not put in any answer and would not ask or apply to the court for any further extension of time. On the last day given by the stipulation the attorney for Lewis served a demurrer to the complaint, alleging as the ground of demurrer that the complaint did not state facts sufficient to constitute a cause of action, and thereafter the attorney for the plaintiff made a motion at special term to overrule and strike out the demurrer ■on the ground that it was frivolous and served in violation of the stipulation, and an order was made by the court overruling it and setting it aside, on the ground that the defendant Lewis was precluded by the stipulation from demurring or answering. After' that the plaintiff proceeded as if no demurrer or answer had been interposed and obtained his judgment of foreclosure by default. The defendant Lewis then appealed from that judgment to the general term, where it was affirmed, and from the affirmance there he has appealed to this court. He did not appeal from the order striking out and setting aside the demurrer. That order, therefore, remains in force and cannot be assailed on an appeal merely from the judgment. The appeal from the judgment, therefore, brings nothing for review to this court. It was a judgment by default. There was no trial and no exceptions. The plaintiff is not precluded from making this motion, because he noticed, the cáse for argument and placed it upon the calendar. He waived nothing by so doing. It was still optional with him to wait until the case was reached on the calendar, or to make this motion on the ground that an appeal from such a judgment to this court was not authorized.

The motion should, therefore, be granted, with costs.

All concur.  