SUPREME COURT.

#### Tyler W. Parker, as executor, agt. John W. Warth.

*General Term, First Department,*

*October,*1875.

*Appeal from, an order after judgment.*

Where an answer has keen stricken out as frivolous and judgment entered, no appeal can he taken from the order striking out the answer if there is no appeal from the judgment.

*Before Justices*Davis, Brady *and*Daniels.

Motion to dismiss an appeal.

*J. W. Judson,*for appellant.

*Geo. W. Van*Slyck, for respondent.

Brady, *J.*

—The ■ appeal taken in this case must be dismissed. The answer was on motion stricken out as frivolous, and judgment ordered for thé plaintiff. The judgment was entered, and, thereafter, this appeal was taken, not from the judgment, but the order upon which it was based.

Many decisions affecting the subject, namely, whether the appeal may be from the order or should be from the judgment, have been made, which are sometimes in conflict and' sometimes reconcilable. A collection of them might be found in *Waifs Practice (vol.*3, *pp.*593, 594, 595), to which the curious student is referred. The cases in which, as there ■stated, the appeal from the order has been upheld and advocated are those in which a further answer was permitted, and *21in which, consequently, no judgment was ordered in the first instance. Many adjudications will be found there grouped, holding that when judgment is ordered the appeal must be from it. It will be found, also, that the appeal has been sustained where it is taken before the judgment is entered, a distinction which may well be made, although the efficacy of appeal, unless a stay of proceedings is obtained, may well be doubted. Section 349 provides for an appeal from an order in any stage of the action, including proceedings supplementary to execution, but the action *eo nomine*ceases with the judgment. The right is then determined, and all that remains to be done is to enforce payment, or compel the performance of what the judgment decrees shall be done. Here there was no stay of the action when the appeal was taken. It had ended, and in the judgment the order was merged, leaving the defendant to his remedy by appeal from the judgment alone, which would, necessarily, bring up the order of which it was predicated. This is the rational view of the section, and in accord with the adjudications referred to in *Wait (supra),*holding that where, as in this case, judgment is ordered and entered, the appeal cannot be taken from the order only.

If the appeal be from the order no stay of proceedings relating to it would prevent the. plaintiff from collecting the judgment. To prevent that there must be a stay of the judgment itself, and the Code makes no provision for a stay of proceedings upon the judgment rendered on an appeal, taken after the entry of judgment, from an interlocutory order granted pending the action. All the consequences of a judgment, therefore, seem to be in hostility to an appeal from an order made in the action, prior to the judgment rendered, and from which no appeal was taken until after the judgment was perfected.

The motion to dismiss must, for these reasons, be granted, with ten dollars costs.

Davis, P. J., and Daniels, J., concurred.