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Furniss v. Furniss

148 A.D. 217 Court First Department, Decision date 1911-12-29 Docket Appeal No. 2 English

Delivered by Ingraham, P. J.:

Contents

Majority

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William Ponsonby Furniss and Grace Livingston Furniss, Respondents, v. Sophia R. C. Furniss and Margaret E. Zimmerman, Individually and as Trustees under the Last Will and Testament of William P. Furniss, Deceased, and Clementina Furniss, Appellants, Impleaded with Arthur V. Goodacre, as Administrator, etc., of Louise M. Furniss, Deceased, and Adele C. Furniss, Individually and as Executrix, etc., of Hartman K. Furniss, Deceased, Respondents.
(Appeal No. 2.)
First Department,
December 29, 1911.

Headnote

Demurrer — entry of judgment after demurrer—failure to plead over — appeal.
Where a demurrer to a complaint is overruled, and the defendants allowed to answer within twenty days, with a direction that upon them failure to do so an interlocutory judgment may be entered for the relief demanded in the complaint, and the defendants appeal from the order
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overruling the demurrer and also from the interlocutory judgment entered in favor of the plaintiff upon their failure to answer, the appeal from the interlocutory judgment should not be dismissed on the ground that the judgment appealed from was entered by default. Since the order overruling the demurrer is reversed the interlocutory judgment based thereon will also be reversed.
Appeal by the defendants, Sophia It. C. Furniss and another, individually and as trustees, etc., and Clementina Furniss, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of August,-1911, upon the decision of the court, rendered after a trial at the New York Special Term, requiring an accounting and appointing a referee to take and state the account of the trustees.
Henry de Forest Baldwin, for the appellants.
Herbert Barry, for the respondents.

This judgment was entered in pursuance of an order of the Special Term overruling demurrers to the complaint and directing an interlocutory judgment requiring the defendants individually and as trustees to account,. and granting to plaintiffs the relief demanded in the complaint. -The defendant trustees appealed from that order, and this court in a decisión entered herein has reversed the order and sustained the demurrers, giving the plaintiffs leave to amend. (Furniss v. Furniss, No. 1, 148 App. Div. 211 .) After the entry of that order the interlocutory judgment was entered, and from that interlocutory judgment this- appeal is taken.

It is claimed by the respondents that this appeal ¡should be dismissed because the judgment appealed from was entered by default. The judgment recites the demurrer, the order of the court overruling it and allowing the demurring defendants to answer within twenty days and upon then* failure to answer that judgment should be entered for the relief demanded in the complaint, and a failure of the defendants to answer within the time allowed; and that then on motion' of the plaintiffs’ attorneys the judgment was entered. It does not appear from the judgment that notice of the entry of judgment was given

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to the defendants, although they had appeared in the action or that the defendants appeared in opposition to the motion, but the judgment was entered in pursuance of an order directing judgment after the decision of a motion for judgment on the pleadings. In People v. Manhattan Peal Estate Co. ( 74 App. Div. 535 ), where final judgment was entered in pursuance of the directions contained in an interlocutory judgment which overruled the defendant’s demurrer to the complaint, it was contended by the plaintiff that the judgment appealed from was rendered upon the defendant’s default and that consequently no appeal would lie. The court said that a contrary rule was laid down in Smith v. Barnum ( 3 N. Y. Supp. 476 ) and the court acquiesced in that decision. Upon appeal to the Court of Appeals ( 175 N. Y. 133 ) that court entertained the appeal and reversed the judgment on the ground that the demurrer should have been sustained. This seems to me to dispose of the question and justifies an appeal from the judgment.

As we have reversed the order upon which this judgment was based it follows that the judgment itself must be reversed, with costs..

Clarke, Scott, Miller and Dowling, JJ., concurred.

Judgment reversed, with costs.

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