Requard v. Theiss — 43 N.Y.S. 1066

Majority

p. 1066

REQUARD et al. v. THEISS et al.

(Supreme Court, Appellate Term, First Department.

January 27, 1897.)

Headnote

Appeal—From Order for Judgment.

An order dismissing a complaint is appealable where it was made on a motion for other relief on which a dismissal could not be lawfully granted.

Appeal from city court of New York, general term.

Action by Julius Kequard and Edward L. Kequard against George Theiss and another. From an order of the city court ( 42 N. Y. Supp. 460 ) reversing an order of the special term dismissing the complaint, defendants appeal. Affirmed.

Argued before DALY, P. J., and McADAM and BTSOHOFF, JJ.

Fromme Bros. (Herman Fromme, of counsel), for appellants.

Baggott & Ryall (George J. Ryall, of counsel), for respondents.

The order of the general term to be correct. The motion which was heard by the special term was made upon an order to show cause requiring the payment of money into-court, or giving of an undertaking, or, in default thereof, that plaintiff show cause why such payment should not be made or an undertaking given as security for costs. It appears by the order of the-special term that that motion was heard, but it appears from the same order_ that the motion granted was a motion to dismiss the complaint. ' No notice of motion had been made for that relief, and it was not included in the order to show cause. The plaintiff had the right, therefore, to appeal from an order granting relief which had not been applied for, and the general term of the city court was justified in reversing the order granting that relief.

No error, therefore, is apparent from the record, and we have to affirm.