Summary
In Whiting v. City of New York, 37 N.Y. 600, which was an appeal from the General Term of the Court of Common Pleas for the city and county of New York, where a judgment was entered in favor of the plaintiff, the demurrer to the complaint had been affirmed.
Summary of this case from Pollak v. Dodge Manufacturing Co.Opinion
January Term, 1868
In this case the appellants had, in the court below, demurred to the complaint. The demurrer being overruled, with leave to answer, they declined to answer, submitted to the judgment, and, on the affirmance in the General Term, appealed to this court. On the argument here, the appellants urged that, if the judgment should be affirmed, leave should now be given to them to answer the complaint. The court are unanimous in holding, that,
Where a pleading is sustained, the demurrer being overruled, and leave is given to answer the pleading, the demurrant is put to his election to answer over or submit to judgment; and if he submit to judgment, the judgment is final. If he appeal therefrom to this court, such appeal comes here on the question of affirmance or reversal only; and no leave to the demurrant to answer or plead anew can be given. The judgment here is absolutely final.