Farmers Loan & Trust Co. v. Bankers & Merchants Telegraph Co.

Majority

p. 516

The Farmers Loan and Trust Co., as Trustee, App’lt, v. The Bankers and Merchants Telegraph Co. et al., Resp’ts.^[1]

(Court of Appeals,

Filed April 24, 1888.)

Headnote

1. Practice—Appeal erom an order—When receipt of costs ordered PAID DOES NOT WAIVE RIGHT TO APPEAL.

Upon motion on notice at special term, the plaintiff obtained leave “ to file and. serve a supplemental complaint * * * with ten dollars costs of motion to the United Lines Telegraph Company.” The defendant received the above costs and appealed to the general term from the rest of of the order. Held, that the costs were given absolutely and were neither connected with nor dependent upon that part of the order which was appealed from; that defendant did not waive the right to appeal by accepting the costs so ordered to be paid.

3. Same—Order allowing supplemental complaint—Not appealable TO COURT OF APPEALS.

An order allbwing or refusing leave to serve a supplemental complaint is a matter within the discretion of the supreme court, which may finally be exercised by the general term thereof. It is not the subject of review by the court of appeals.

Appeal from an order of the supreme court, general term, first department, affirming an order of the special term granting leave to the plaintiff to file and serve a second supplemental complaint.

Herbert B. Turner, for app’lt: Robert H. Griffin, for resp’ts.

—Upon motion on notice at special term, the plaintiff obtained leave “to file and serve a supplemental complaint, with ten dollars costs of motion, to the United Lines Telegraph Company.” The defendant received the above costs, and on the 5th of December, 1887, appealed to the general term from the rest of the order. On the 39th of December, 1887, the plaintiff gave notice of a motion to dismiss that appeal upon the ground so far as now insisted upon, that the right to appeal had been waived by accepting the costs so ordered to be paid. On the 3d of January, 1888, the motion was denied, and on the 33d of January, 1888, the general term reversed the order of the special term. The plaintiff appeals to this court from the order denying its motion to dismiss, and also from the order of reversal.

It is a sufficient answer to the first, that the imposition of costs does not appear to have been conditional, but does appear to be absolute. Leave was granted to the plaintiff to serve a new pleading, and costs were granted to the defendant. Had the plaintiff refused to avail itself of the permission to plead anew, it would still have been liable to the defendant for the costs of motion. They are given absolutely, and are neither connected with, nor dependent upon that portion of the order which was appealed from. So a review could be had of that part without affecting the rest. It was not so in the cases cited by the learned counsel for

p. 517

the plaintiff. In those relief was granted upon condition, as in Radway v. Graham (4 Abb. Pr. R., 468), an answer was allowed upon payment of certain costs. In Marvin v. Marvin (11 Abb. N. S., 99), a decree was modified upon condition.

In Platz v. City of Cohoes ( 8 Abb. N. C., 397 ), a new trial was granted upon terms which were complied with and accepted by the party benefited. In. all these and others that are cited, it was held that one receiving the benefit of an order waives the right to appeal, but in the case at bar the defendant only received what belonged to it, and to which its right was perfect, whether the plaintiff availed itself of 'the leave given by the order or not. He was at liberty, therefore, to contest the part giving that leave. In re Water Com’rs of Amsterdam, 36 Hun, 534 . I think there is no ambiguity in the order in this respect, but if there were, its construction by the court making it should be conclusive.

As to the other, it is well settled that an order allowing or refusing leave to serve a supplemental complaint is a matter within the discretion of the supreme court, as that discretion may finally be exercised by the general term, and that it is not the subject of review in this court. Fleischmann v. Bennett, 79 N. Y., 579 . The learned counsel argues that the action of the general term was not had in the exercise of its discretion. That, however, does not appear. The order to which alone we look is one of reversal merely, and indicates no doubt, on the part of the court, as to its power, or any misconception in its exercise. It is, therefore, unnecessary to inquire whether in any view a case was made for a supplemental complaint, for whatever our conclusion might be, we could not review the decision of the court below in that respect.

Both appeals must, therefore, be dismissed, and as there are two records, with costs of each appeal.

All concur.