
    SUPREME COURT.
    Bruce agt. Pinckney.
    An appeal can not be taken from an order of the special term overruling a demurrer as frivolous. Judgment must first be entered, and the appeal brought upon that. (See Code, § 247.)
    
      Dutchess General Term,
    
    
      July, 1853.
    Judges Barculo, Brown, and S. B. Strong.
    C. D. Newman, for Plaintiff.
    
    J. H. H. Pinckney, for Defendant.
    
   By the Court—Barculo P. Justice.

The sole question presented by this case is this, can an appeal he brought from a decision of the special term overruling a demurrer as frivolous as an order ?

We are of the opinion that such an appeal is not authorized by the Code; and that judgment must first be entered upon the decision of the special term, and an appeal he brought from the judgment. The authority for treating a frivolous demurrer is found in section 247, which provides that if a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon; and judgment maybe given accordingly.” The application in the present case must have been made under this section, and the decision below must have been a judgment, if any thing. It clearly cannot, therefore, he treated as an order for the purpose of an appeal.

Appeal dismissed.  