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Stearns v. Shepard & Morse Lumber Co.

91 A.D. 56 Court N.Y. App. Div. Docket No. 2 English

Delivered by Ingraham, J. :

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p. 56
George A. Stearns, Appellant, v. Shepard & Morse Lumber Company, Respondent.
(No. 2.)

Headnote

Appeal from, a judgment—an intermediate order will not be reviewed unless it is referred to in the notice of appeal.
Where the plaintiff in an action is entitled to recover the value of certain property less certain deductions, and the court, by consent of the counsel, submits to the jury only the question of the value of the property, reserving for itself the question as to the amount of the deductions, and, after the jury have rendered their verdict, the court enters an order determining the amount of the deductions,, and judgment is entered upon the verdict as thus reduced, if the plaintiff appeals from the judgment without specifying in the notice of appeal that he desires to review the intermediate order fixing the amount of such ■ deductions, the Appellate Division has no power to review such intermediate order.
Appeal by the plaintiff, George A. Stearns, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day. of May, 1903, upon the special verdict of a jury and an order of the court reducing the amount of such verdict.
The ground of the appeal is the alleged inadequacy of the recovery.
Guy C. Frisbie, for the appellant.
■ Eustace Conway, for the respondent.

The facts in. this case are stated in the opinion on the appeal by the defendant from the judgment entered upon the verdict of a jury in this action, decided herewith ( 91 App. Div. 49 ). The court submitted to the jury but one question, and that was as to the value of the plaintiff’s property which was sold under a judgment in an action in the State of New Jersey, in violation of a contract made between the defendant and the plaintiff. The jury found that the value of the property was the sum of $5,266. All the other questions affecting the amount for which the plaintiff was entitled to a verdict were reserved by consent of counsel for the court. Subse

p. 57
quently the court entered an order which provided that from the amount found by the special verdict there should be deducted the amount of $2,900, a mortgage upon the premises sold; $1,527.75, the amount of the indebtedness of the plaintiff to the defendant, with interest, and also the amount paid to creditors of the plaintiff, other than the defendant, who shared in the distribution of the proceeds realized on the sale of the. plaintiff’s property in the attachment suit in New Jersey, aggregating the sum of $737.11, making a total of $4,264.86, leaving a net balance of $1,001.14, for which amount, with interest, the plaintiff was entitled to a verdict as being, the net amount of the damage sustained by him, and upon the verdict as thus reduced by the court judgment was entered.'- From this" judgment the plaintiff appeals, but does not state in the notice of appeal that he desires to review the intermediate order as required by sections 1301 and 1316 of the Code of Civil Procedure.

Upon an appeal from a final judgment, under those sections, an. intermediate order, which is specified in the notice of appeal and which necessarily affects the final judgment, can be reviewed, but after final judgment such an intermediate order can only be reviewed upon an appeal from the judgment when in .the notice of appeal the intermediate order is specified. As the notice of appeal from the final judgment does, not specify this intermediate order, we have no power to review it.

As the only question presented on the plaintiff’s appeal relates to the order, the judgment appealed ■ from must be affirmed, with costs.

Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.

Judgment affirmed, with costs.

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