
    William M. Keepers, Respondent, v. M. Hartley Company, Appellant.
    First Department,
    April 26, 1912.
    Appeal — after service of Answer from order overruling demurrer — dismissal.
    Where a defendant, after an Order has been entered overruling his demurrer to the complaint and granting him leave to answer, serves an answer, a subsequent appeal from the order should be dismissed, for the demurrer has been superseded by the answer.
    Motion to dismiss appeal.
    
      M. Conboy, for the motion.
    
      J. A. Garver, opposed.
   Per Curiam:

In this case the defendant demurred to the complaint, and upon motion an order was entered- overruling the demurrer and granting the defendantleave to answer. This order was entered on February twenty-third. On February twenty-sixth the defendant served a notice of appeal from the order overruling his demurrer and made several motions to have his time to answer extended, which motions were denied. On April first the defendant, under the leave reserved in the original order, served its answer to the amended complaint, and the case is now at issue.

The service of the answer superseded the demurrer, and the case must now be disposed of upon the complaint and answer. The right to object to the sufficiency of the complaint is reserved until the trial of the issue; but the sufficiency of the complaint cannot be determined upon an appeal from the order entered upon the demurrer after an answer has been interposed. This court can make no order upon this appeal as the pleading upon which it is based has been superseded by the answer. If the defendant had wished to rely upon his objection to the sufficiency of the answer, it should have continued its appeal without serving an answer, depending upon this court to give leave to answer if the order appealed from was affirmed.

The appeal must be dismissed, with ten dollars costs.

Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Motion granted, with ten dollars costs.  