Zunz v. Heroy — 23 N.Y.S. 15

Majority

p. 15

ZUNZ v. HEROY et al.

(Common Pleas of New York City and County,

General Term.

April 3, 1893.)

Headnote

Appeal—Review—Interlocutory Judgment.

An appeal from a final judgment does not bring up for review an interlocutory judgment which has already been reviewed on a separate appeal therefrom.

Appeal from judgment on report of referee..

Action by Paul Zunz against James H. Heroy and another for an accounting for the sales of merchandise consigned by plaintiff to defendants. From a final judgment in favor of plaintiff, defendants appeal.

Affirmed.

Argued before BOOKSTAVEB, P. J., and BISCHOFF and PBYOB, JJ.

W. W. Mies and Henry Thompson, for appellants.

Horwitz & Hershfield, (Otto Horwitz, of counsel,) for respondent.

An appeal from a final judgment brings up for review an interlocutory judgment which has not already been reviewed upon a separate appeal therefrom. Code Civil Proc. § 1316. The interlocutory judgment in this action was affirmed at gen

p. 16

eral term upon appeal by the present appellant, (Zunz v. Heroy, [Com. Pl. N. Y.] 7 N. Y. Supp. 644 ,) and is therefore conclusive upon us. The closest scrutiny of the evidence and proceedings before the referee on the accounting directed by the interlocutory judgment, which involved the examination of much testimony and numerous exhibits,—labor which the many inaccuracies in the brief of appellants’ counsel did not tend to diminish,—has not enabled us to discover any error. The referee’s findings of fact are abundantly supported by the evidence, and his conclusions of law are fully warranted by the facts found.

The judgment and orders should be aifirmed, with costs.