Victory v. Blood

Headnote

An appeal may be taken to the General Term from an interlocutory judgment (Code of Civil Procedure, § 1349), but such a judgment can only be reviewed in this court on appeal from the final judgment (§§ 190,1336, 1350)

The following is the mem. handed down herein :

“ The plaintiff brought this action against the defendant, his predecessor in office, to compel him to account for moneys received by him officially, and to pay over any balance which might be found in his hands. The action was put at issue by the answer of the defendant, and was brought to trial at a Special Term of the Supreme Court.

“ The court found that the plaintiff was entitled to recover from the defendant such sum as might be found due him upon the coming in of the report of the referee appointed to take an accounting, and appointed a referee to take the account and report the same to the court, reserving the question of costs, until the coming in of the report. An interlocutory judgment was entered, from which the defendant appealed to the General Term, where it was affirmed. He then appealed to this court.

“ The defendant could appeal from the interlocutory judgment to the General Term (Code, § 1349), but an appeal to this court was unauthorized, as the judgment was not final. (Code, § 190; Jones v. Jones, 81 N. Y. 35 ; Walker v. Spencer, 86 id. 162 .) The only case in which an appeal .can be taken to this court from an interlocutory judgment, or an order affirming such a judgment, is provided for in subdivision 1 of section 190.

“ The defendant must allow the account to be taken by the referee, and if any balance is found against him, final judgment may be entered therefor, and then he can appeal to this court. (Code, §§ 1336, 1350.)

“ The appeal should be dismissed, with costs.”