Bush v. Abrahams — 15 Daly (N.Y.) 168

Majority

p. 168

Frederick L. Bush et al., Appellants, against David Abrahams et al., Respondents.

(Decided April 1st, 1889.)

Headnote

An appellant moving for reargument after dismissal of his appeal, cannot claim that he was surprised by the decision that the order appealed from was not appealable, where the point was raised in the printed brief of his adversary, and he had an opportunity to argue t.he same, on motion to resettle the order.

A motion to consolidate actions in the City Court of New York having been denied at Special Term on the ground that the aggregate amount in controversy would exceed $2,000, the General Term," on appeal, reversed the order, and remitted to the Special Term the motion for consolidation to be heard upon the merits. Held, that the order of the General Term was not a final order, and did not involve the merits, nor affect a substantial right, nor determine the action, within the meaning of subdivision 3 of section 3191 of the Code of Civil Procedure, and was not appealable to this court.

p. 169

Motion for reargument of appeal from an order of the General Term of the City Court of New York reversing an order of that court denying a motion to consolidate actions and remitting the motion to the Special Term to be heard upon the merits.

The facts are stated in the opinion.

Louis Levy, for appellants.

Horwitz & Hirshfield, for respondents.

The Special Term of the City Court held that it had no power to consolidate five certain actions in that court, when the result would be to make a demand in the aggregate exceeding $2,000. The General Term of the City Court reversed the order entered upon that decision, and remitted the motion for consolidation to the Special Term, to be heard upon the merits, and for the exercise of its discretion. From this order the plaintiff appealed to this court, and his appeal was dismissed upon the ground that the order was not appealable. He moves now for a reargument or for leave to appeal to the Court of Appeals. He does not show that any point raised by him has been overlooked. He claims, however, to have been surprised by the decision that the order was not appealable to this court. He had ample opportunity to discuss that point: it was raised on the printed brief of his adversary on the appeal, and the decision was made by the court on the argument after full hearing. If he desired time to submit a brief upon the point he should have made his application at the time. This he did not do, but subsequently, on another day, he applied to the General Term for a resettlement of its order dismissing the appeal, and then argued in favor of the appealability of the order, but the court adhered to its decision. Under the case of Curley v. Tomlinson ( 5 Daly 283 ), he is not entitled to a re-argument.

There is nothing to send to the Court of Appeals. The decision of our General Term was undoubtedly correct as to

p. 170

the appealability of the order. It was not a final order, it did not involve any of the merits, nor affect a substantial right, nor determine the action (Code Civ. Pro. § 3191 subd. 3). It did not affect the plaintiff in any way, for it did not grant nor refuse consolidation. It left the decision to the Special Term, which might or might not grant the application. Until it was granted plaintiff was not aggrieved.

Larremore, Ch. J., and Van Hoesen, J., concurred.

Motion denied, with $10 costs.