Ronalds v. Camman — 16 N.Y.S. 72

Majority

p. 72

Ronalds v. Camman et al.

(Supreme Court, General Term, First Department.

October 16, 1891.)

Headnote

1. Appealable Orders—Refusal to Dismiss Complaint.

The denial of a motion to dismiss the complaint is a ruling of law to which an exception may be taken, as provided by Code Civil Proc. § 992, and hence under section 996 it can only be reviewed on appeal from a judgment rendered after trial, or where exceptions thereto are ordered to be heard in the first instance at the general term.

2. Same—Entry of Order.

There is no authority for the entry of an order denying a motion to dismiss the complaint, and hence an appeal from such an order presents nothing for review.

Appeal from special term, Yew York county.

This was a suit for partition, brought by George S. Ronalds against Catherine A. Camman and others. Defendants moved to dismiss the complaint on the ground that the action was premature and irregular, and an order was entered denying this motion, from which they appeal. Code Civil Proc. Y. Y. § 992, provides that an exception may be taken to the ruling of the court upon a question of law arising on the trial of an issue of fact. Section 996 provides that a ruling to which an exception is so taken can be reviewed only on appeal from the judgment rendered after the trial.

Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.

Benjamin T. Kissam, for appellants. A. P. & W. Man, (William Man, of counsel,) for respondent.

Exceptions to proceedings upon the trial can only be reviewed by appeal from the judgment, or when they are ordered in the first instance to be tried at the general term. The motion to dismiss the complaint in this action was a part of the proceedings at the trial, and an exception to its denial can therefore be only reviewed in the same manner as any exception taken at the trial may be brought up.^[1] There is no authority whatever for the entry of the order from which this appeal is taken, and therefore the appeal from that order presents nothing for us to review. The appeal should be dismissed, with costs.

1 Code Civil Proc. N. Y. §§ 992, 996, are as follows: “Sec. 992. An exception may be taken to the ruling of the court or of a referee upon a question of law arising upon the trial of an issue of fact. * * *” “ Sec. 996. A ruling to which an exception is taken, as prescribed in the last four sections, can be reviewed only upon an appeal from the judgment rendered after the trial, except in a case where it is expressly prescribed by law that a motion for a new trial may be made thereupon. ”