Commercial Bank v. Foltz — 41 N.Y.S. 183

Majority

p. 183

COMMERCIAL BANK v. FOLTZ et al.

(Supreme Court, Appellate Division, Fourth Department.

October 16, 1896.)

Headnote

Appeal—Postponement of Decision.

Decisions of appeals by defendants from orders settling issues to be tried by jury, and denying motion to correct order denying plaintiff’s motion to strike out amended answer, will stand over till' it be determined whether appeal be taken from the final judgment; it appearing that the trial has been completed before the special term, and a judgment of foreclosure entered for plaintiff, and the property sold thereunder, and that no appeal has been taken from that judgment.

Appeal from special term.

Action by the Commercial Bank against Moses Foltz and others. From an order settling issues to be tried by a jury, and from an order denying motion to amend the order, defendant Foltz appeals; and from an order denying defendant Benjamin Catto’s motion to correct an order denying plaintiff’s motion to strike out said Catto’s amended answer, and denying his motion to vacate another order, denying plaintiff’s motion to strike out said amended answer, said Catto appeals. Decision deferred.

Argued before HARDEN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

John Van Voorhis, for appellants.

Edward Harris, for respondent.

It having been conceded on the argument of these appeals that the issues of fact settled by the special term have been tried before a jury, and determined in favor of the plaintiff; that the trial has been completed before the special term, and a judgment of foreclosure upon the verdict of the jury and the decision of the special term has been entered, and the property sold; and that no appeal has been taken from the judgment,—the decision of these appeals should stand over until it -shall be determined whether ah appeal is taken from the final judgment. After that event either party has the right to move this court to decide or dismiss these appeals.