
    KEEPERS v. M. HARTLEY CO.
    (Supreme Court, Appellate Division, First Department.
    April 26, 1912.)
    Appeal and Error (§ 154)—Ruling on Demurrer—Subsequent Answer-Dismissal.
    Where defendant demurs to a complaint, and an order is entered overruling the demurrer, and granting leave to answer, and defendant appeals therefrom, but afterwards answers and puts the case at issue, the right to object to the sufficiency of the complaint is reserved until the trial, and the appeal will be dismissed.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 957-969; Dec. Dig. § 154.*]
    Action by William M. Keepers against the M. Hartley Company. From an order overruling a demurrer and granting leave to answer, defendant appealed, and afterwards filed an answer, and plaintiff moved to dismiss the appeal. Appeal dismissed.
    See, also, 133 N. Y. Supp. 1128.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, CLARKE, and DOWLING, JJ.
    M. Conboy, for the motion.
    J. A. Garver, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep*r Indexes
    
   PER CURIAM.

In this case the defendant demurred to the complaint, and upon motion an order was entered overruling the demurrer and granting the defendant leave to answer. This order was entered on February 23d. On February 26th 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 1st 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The service of the answer superseded the demurrer, and the case must now be disposed of upon the complaint and answer.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 This court can make no order upon this ■ appeal, as the pleading upon which it is based has been superseded by the answer.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 its objection to the sufficiency of the complaint, 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 $10 costs.  