
    FERRIS against ASPINWALL.
    
      Court of Appeals ;
    
    
      March, 1871.
    Appealable Gbdeb.
    The Code does not allow an appeal to the court of appeals from an order sustaining or overruling a demurrer.
    Final judgment must be given upon the demurrer before the court of appeals can review it.
    Motion to dismiss an appeal.
    The action was brought by Madison J. H. Ferris against Benjamin Hart, Lloyd Aspinwall, Gr. Gr. How-land, and others, forming “The National Express and Transportation Company.”
    The defendant Aspinwall, in his answer, besides making a general denial,' set up certain new matter, to which plaintiff demurred. The special term overruled the demurrer, and ordered judgment for the defendant, with costs. On appeal to the general term the order of the special term was affirmed, and the plaintiff appealed to this court. Defendant’s counsel now moved to dismiss the appeal.
    
      John E. Burrill, for the motion,
    Cited Adams v. Fox, 27 N. Y., 640 ; Paddock v. Springfield Fire & Marine Ins. Co., 12 Id., 591.
    
      R. S. Guernsey, opposed.
    I. The decision is appeal-able as an order, under subdivisions 2 and 4 of section 11 of the Code. (1.) It affects a substantial right, and in effect and in fact determines the action. The decision overruling the demurrer disposed of the issues of fact. The defenses demurred to were in bar of the action. When the plaintiff demurs to an answer which is a bar to the action, and the demurrer is overruled, the defendant is entitled to judgment absolute (Wightman v. Shanklin, 18 How. Pr., 79; McCormick v. Pickering, 4 N. Y. [4 Comst.] 276; Grah. Pr., 761 ; 2 Wend., 632), unless it appears that the plaintiff might prevail on the issues of fact joined in the action (Belknap v. McIntyre, 2 Abb. Pr., 366). In the case at bar the plaintiff could not possibly prevail on the issues of fact after the absolute defenses demurred to were held good as a bar. (2.) Again, judgment absolute was ordered for the defendant on the demurrer, with costs, and plaintiff could not proceed any further in the action. (3.) Had the order overruling the demurrer been reversed by the general term, it would not have been appealable, as the issues of fact were yet to be disposed of (Paddock v. Springfield Fire & Marine Ins. Co., 12 N. Y. [2 Kern.], 591).
    II. If it is not appealable as an order, it is as a judgment. It was the final determination of the rights of the parties (§ 245). (1.) A hearing of a demurrer is a trial (§ 252), and a decision thereon is a judgment. A demurrer is heard at special term as a trial, and an appeal from an order overruling a demurrer is heard at general term as an appeal from a judgment, and the same costs are allowed at special term as on a trial, and same costs at general term as on an appeal from a judgment (Baldwin v. U. S. Tel. Co., 6 Abb. Pr. N. S., 405; Small v. Ludlow, 1 Hilt., 307; Hendricks v. Bouck, 2 Abb. Pr., 360). (2.) No thing further remained necessary to be done by the court to complete the judgment under section 269. . No question could arise that might be further litigated in the action. It was final. The taxation of costs by the clerk, and the filing of the judgment roll, were merely ministerial (Mitchell 
      v. Weed, 6 How. Pr., 127). In-the case of Morris v. Morange (4 Abb. Pr. N. S. 447), this court held that a decree, in an action of foreclosure, directing a sale and a judgment for a deficiency, is a final judgment, and appealable as such to this court. (3.) “An appeal lies to the court of appeals from a judgment of the general term rendered upon argument affirming'a final judgment of any kind, if the latter is an actual determination of a court of record, and not merely rendered upon default” (Lahens v. Fielden, 15 Abb. Pr., 177).
    III. If the legal questions that arose and were decided on this demurrer cannot be reviewed in this court as the case now stands, the plaintiff must, after the entry of judgment of special term, take another appeal to the general term, which must then proforma again affirm the judgment, with costs (thus making two bills of costs of appeal), and, after the entry of that judgment of affirmance and for costs of appeal, take an appeal to this court. The return to this court now contains all that it would then contain, except a statement of the amount of costs for which judgment was entered. In the absence of any positive law requiring it, such a proceeding would be too absurd to be held necessary or proper.
   By the Court.—Allen, J.

The appeal is prema ture, as no judgment has been entered in the action.

The Code gives an appeal from the special to a general term of the supreme court, from an order sustaining or overruling a demurrer (Code, § 349). But in defining and regulating the jurisdiction of this court, there is no similar provision.

The decision of the supreme court upon the demurrer cannot be reviewed except by an appeal from the judgment, and upon such appeal any intermediate order involving the merits, and necessarily affecting the judgment, may be reviewed (Code, § 11). The order is not included in any of the classes of orders from which an appeal is allowed to this court. Final judgment upon the demurrer must be given before it can be reviewed here (Adams v. Fox, 27 N. Y., 640; Paddock v. Springfield Fire & Marine Ins. Co., 12 N. Y. [2 Kern.], 591).

The appeal must be dismissed, with costs of the appeal to the time of the motion.

All the judges concurred.

Appeal dismissed, with costs.  