Wood v. Lambert 3 Sandf. 724, 5 N.Y. Super. Ct. 724

Wood v. P. and J. Lambert.

The decision of the court upon a demurrer, cannot be appealed from as an order. It is a judgment, and no appeal can be taken until the judgment be perfected.

Where the defendant has appeared in the suit, so as to be entitled to notice of the proceedings, the plaintiff cannot settle ex parte, the form of the judgment to be entered, if it grant him special relief. The defendant is entitled to notice of the application to settle the judgment. '

Feb. 15, 1851.

The foregoing points were decided, the last at chamhers, and the other at general term. Both decisions were upon consultation with all the justices of the court.

The defendants had demurred to the complaint. Upon argument, the demurrer was overruled, with leave to the defendants to answer in twenty days on payment of costs. They did not answer, hut appealed from the decision to the general term. After the twenty days, the plaintiff proceeded, without notice, to settle and perfect his judgment, the purport of which was to set aside an assignment as fraudulent, with other special relief. The plaintiff moved, at the general- term, to dismiss the appeal, and the defendants moved at chamhers to set aside the judgment. Both motions were granted.

Tucker <& Crajpo, for the plaintiff.

H. H. Wheeler, for the defendants.