Kalvin v. Meyers — 117 N.Y.S. 141

Majority

p. 141

KALVIN v. MEYERS et al.

(Supreme Court, Appellate Term.

May 27, 1909.)

Headnote

1. Tbial (§ 6^[1] )—Notice of Trial—Compelling Acceptance.

Upon dismissal of the complaint, the court properly refused to compel defendant to accept service of a notice of trial in the same action.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 6.^[1] ]

2. Appeal and Ebbob (§ 871^[1] ) — Decisions Review able — Intermediate Orders.

Upon appeal from the judgment only those intermediate orders specified in the notice of appeal which necessarily affect the judgment are reviewable, and upon an appeal from a judgment dismissing the complaint for want of prosecution, an order denying a motion to strike part of the answer was not reviewable, not affecting the foundation of the judgment

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 871.^[1] ]

Appeal from City Court of New York, Special Term.

Action by Abraham Kalvin against Abraham Meyers and another. From an order dismissing the complaint, an order denying plaintiff’s motion to strike out part of defendants’ answer, and from an order denying a motion to compel defendants to accept service of notice of trial, plaintiff appeals.

Affirmed.

Argued before DAYTON, SEABURY, and LEHMAN, JJ.

Sol. J. Freudenheim (Samuel J. Siegel, of counsel), for appellant.

Weed, Henry & Meyers (Stillman F. Kneeland, of counsel), for respondents.

The order dismissing the complaint herein for non-prosecution was properly granted, and the order and the judgment entered thereon should be affirmed.

In view of the dismissal of the complaint, the court was correct in refusing to compel the defendants to accept' a notice of trial in the same action, and this order should be affirmed. Upon the appeal from the judgment only those intermediate orders specified in the notice of appeal come up for review as necessarily affect the final judgment. “It is only orders which, if reversed, would take away the foundation of the judgment that can.be reviewed on appeal from the judgment.” Raff v. Koster & Bial, 38 App. Div. 336 , 56 N. Y. Supp. 997 . The

p. 142

order entered on April 10, 1906, denying the plaintiff’s motion to strike out part of defendants’ answer, in no wise affects the foundation of the judgment appealed from here, and we can, therefore, not consider its propriety at this date.

Judgment and order affirmed, with $10 costs and disbursements. All concur.