United Paperboard Co. v. Iroquois Pulp & Paper Co.

Majority

p. 253

The United Paperboard Company, Appellant, v. Iroquois Pulp and Paper Company, Respondent.

Fourth Department,

October 6, 1926.

Headnote

Appeal — Appellate Division may, under Civil Practice Act, § 684, direct judgment for injunction and remit case for assessment of damages — permission to appeal to Court of Appeals granted.

The Appellate Division may, acting under section 584 of the Civil Practice Act, direct a judgment for an injunction and remit the case to the Special Term for the assessment of damages.

However, since the question of the power of the Appellate Division is involved and important, it should be passed upon by the Court of Appeals, and permission is given to appeal to the Court of Appeals.

Reargument of an appeal by the plaintiff, The United Paperboard Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 12th day of December, 1924, upon the report of a referee appointed to hear and determine the whole issues. This appeal was transferred from the Third Department.

William E. Bennett and Joseph A. Kellogg, for the defendant, in favor of the motion.

James Todd, for the plaintiff, in opposition.

The defendant upon this motion for reargument, and in the alternative, for leave to appeal to the Court of Appeals, questions the power of this court under section 584 of the Civil Practice Act to direct judgment for an injunction and remit the case to the Special Term for the assessment of damages. (See 216 App. Div. 639 .)

We construe the words “ final judgment upon the right of any or all of the parties ” in section 584 of the Civil Practice Act, broadly to include all such final determinations of a party’s right as could have been made by the trial court. (Lamport v. Smedley, 213 N. Y. 82 ; Acme Realty Co. v. Schinasi, 215 id. 495; Kaumagraph Co. v. Stampagraph Co., 235 id. 1, 10.)

The judgment in question finally determines all the rights involved in this litigation except the amount of damages. We have directed judgment without ordering a new trial of all the issues in the hope of expediting the determination of this litigation. The question of the power of the Appellate Division is novel and important and should be passed upon by the Court of Appeals.

The motion for a reargument should be denied, and the motion for leave to appeal granted and questions certified.

p. 254

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order and judgment of reversal, entered May 5, 1926, amended by modifying the 34th finding of fact and the first adjudging paragraph of the judgment. Motion for reargument denied. Motion for leave to appeal to Court of Appeals granted, and questions for review certified. Stay granted pending hearing and determination of appeal.

Cases cited

Lamport v. Smedley 213 N. Y. 82 N.Y. 1914-11-10 p. 253