Dickson v. Knapp — 44 N.Y.S. 636

Majority

p. 636

DICKSON et al. v. KNAPP et al.

(Supreme Court, Appellate Division, Fourth Department.

April 10, 1897.)

Headnote

Appeal—Decision Made during Trial.

A decision of the special term made during the trial cannot he reviewed by th.e appellate division until the trial has been concluded, and a decision made, signed, filed, and excepted to, as required by the Code of Civil Procedure.

Appeal from special term, Onondaga county.

Action by Joseph B. Dickson and Jessie L. Eddy against Jennie E. Knapp and others. From a decision made during the trial in favor of plaintiffs, defendant Knapp appeals. Dismissed.

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

George H. Sears, for appellant.

Frederick H. Hazard, for respondents.

This is an unusual record, the like of which we have never before met. The action is to foreclose a mortgage on real estate, and was moved for trial at a special term held in Onondaga county, in November, 1896. When the case was moved, the defendant asked that the complaint be dismissed, on the grounds (1) that a cause of action was not stated in the complaint; (2) that causes of action were improperly joined in the complaint; and (3) that the defendant is entitled to a judgment because no reply had been served. The motion was properly denied by the learned justice presiding. The defendant did not except to the decision, which was put in the form of an order, nor was an exception thereafter filed or served. From this decision the defendant has appealed. The trial was not completed, and neither party had rested.

A decision of a special term, made during the trial of an action, cannot be reviewed by this court until the trial has been concluded, and a decision made, signed, filed, and excepted to, as provided by the Code of Civil Procedure.

The appeal should be dismissed, with fit) costs and disbursements.