DABNEY against GREELEY

DABNEY against GREELEY. Court of Appeals; January, 1872. Appealable Oedee. An order denying a motion for judgment, on the ground that a demurrer is frivolous, is not appealable. Appeal from an order. Charles H. Dabney and others sued Horace Greeley and Edgar Irving, in the New York superior court, on the following state of facts: Judgment had been entered on September 20, 1871, in favor of the plaintiffs, against Simon Stevens, in accordance with the remitti-' tur of the court of appeals. The defendants were sureties on the undertaking on appeal to the general term. The complaint alleged that Stevens hath hitherto neglected to pay the amount of the said judgment, but hath wholly refused and made default, whereby the said defendants, Horace Greeley and Edgar Irving, became and .are liable to pay,” &c. Demurrerá were interposed to this complaint. The plaintiffs moved for judgment, upon the ground that the demurrer was frivolous. This motion was denied at special term. The plaintiffs appealed to the general term. At the general term the appeal was dismissed, upon the ground that the order was not appealable, and the plaintiffs appealed from that order of dismissal to the court of appeals. Amasa J. Parker, for the plaintiffs, appellants. Dudley Field, for the defendants, respondents. I. The order was not appealable to the general term (Code, § 349; Crucible Co. v. Steel Works, 9 Abb. Pr. N. S., 195; Fillette v. Herman, 8 Id., 193, note; De Barrante v. Deyermand, 41 N. Y., 355; Foote v. Lathrop, Id., 358). II. The utmost the court can do upon this appeal is to determine whether the order was appealable to the general term. A review of the decision at special term cannot be had here at this stage of the case (Hoe v. Sanborn, 36 N. Y., 93; Matter of Duff, 10 Abb. Pr. N. S., 424; People v. N. Y. Central R. R. Co., 29 N. Y., 418). III. The complaint did not state facts sufficient to constitute a cause of action. It does not show a demand upon the principal debtor, Stevens, nor the issuing or return of an execution. It is a well settled rule of law that the remedy against the principal must be exhausted before the surety is held liable. [MAJORITY — The Court] The Court held that the order of the general term dismissing the appeal on the ground that the order was not appealable, was correct, and should be affirmed, with costs.