Hollister Bank of Buffalo v. Vail — 15 N.Y. 593

Majority

p. 593

The Hollister Bank of Buffalo against Vail and another.

Headnote

The plaintiff, in an action to foreclose a mortgage, obtained judgment at special term of the Superior Court of Buffalo, upon the ground of the frivolousness of a demurrer interposed to the complaint, and this order for judgment was affirmed by the Superior Court at general term. The plaintiff then obtained a computation of the amount due him, and judgment for a foreclosure and sale, at the special term. From this judgment, and from the order, at the general term, affirming the judgment upon the demurrer, the defendant appealed to the Court of Appeals; Held, that such appeal would not lie. The defendant should, after the final judgment at the special term, have appealed therefrom to the Superior Court at general term, when, in case of affirmance, they might have appealed to this court.

Motion by the plaintiff to dismiss an appeal. The action was brought in the Superior Court of Buffalo, to foreclose a mortgage executed by the present appellants and another person, to secure an indebtedness then existing, and also future advances to be, made by the plaintiff to the mortgagors ; and his complaint averred that a certain amount specified had become due and payable from the mortgagors to the plaintiff, according to the condition of the mortgage. The appellants, being two of the defendants in the action, demurred to the complaint, alleging that it did not state facts sufficient to constitute a cause of action. The plain tiff applied to a justice of the court for judgment, on account of the alleged frivolousness of the demurrer; and judgment in favor of the plaintiff on the demurrer, was thereupon rendered in general terms; and this order for judgment was affirmed at a general term, upon appeal brought by the present appellants. The plaintiff then procured a computation of the amount due to be made, and applied for and obtained, at a special term, the usual formal judgment for a foreclosure and sale. There was no further appeal to a general term; but the defendants, who had demurred,

p. 594

appealed to this court from the final judgment, and from the order of the general term, affirming the order for judgment on the demurrer, first made at the special term.

Nichols & Vandeventer, for the respondent.

Sprague & Fillmore, for the appellants.

The plaintiff’s counsel maintains that an appeal does not lie in this case, because, as he argues, the appeal is from an order, as distinguished from a judgment, and it is insisted, that by the act creating the Superior Court of Buffalo, appeals to this court can only be taken from the judgments of the Superior Court. The language of the act is, “ appeals from the judgments of the said court, rendered at general term, shall be taken directly to the Court of Appeals, in the same manner as from judgments of the Supreme Court in the cases prescribed by law.” (Laws of 1854, 227, §19.) We do not think any such distinction as the one suggested was intended by the legislature. The word judgment is used in the statute in a general sense, and in the construction of the act, should be considered as synonymous with determination, in the eleventh section of the Code. The section quoted from the act of 1854, is in pari materia with the provisions of the Code relating to appeals; and they should together receive such a construction, if possible, as to make the system .harmonious. It would be incongruous to provide that a class of determinations in this local court should be conclusive, which, if made in the Supreme Court, or in the Superior i Court, or Common Pleas, of New-York, would be review:able here on appeal. The appeal in this case cannot be 'sustained under either the second or third subdivisions of ¿section eleven of the Code. The' decision sought to be reviewed did not prevent a judgment from which an appeal might be taken, so as to bring the case under the second

p. 595

subdivision, nor was it made upon a summary application in an action after judgment, which is the case provided for by the third subdivision. To be reviewable under the first subdivision, the decision must be an actual determination at general term in a judgment. There was an actual determination at general term of the question raised by the demurrer, but that determination was not made in a judgment. It was made on an appeal from an order under subdivision two of section three hundred and forty-nine. The appellants, if they desired a review in this court of that decision, should, after judgment at special term, have appealed to the general term; and if the judgment at special term had been there affirmed, an appeal from that judgment would have brought the question here. If the practice adopted by the appellants were sanctioned, it would be quite conceivable that, in a case like this, one appeal from special term should be pending at general term as to the proceedings in ascertaining the amount due; and another appeal be in this court to review the decision on demurrer, at the same time. The Code, on the other hand, looks to a single appeal only, to this court t in an action, which may embrace all the proceedings up to and including the judgment.

The appeal must be dismissed with costs.

Appeal dismissed.