Fales v. Lawson — 21 N.Y. St. Rep. 708

Majority

p. 708

Francis A. Fales, Resp’t, v. Thomas B. Lawson et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed February 7, 1889.)

Headnote

Practice—Judgment—Form or—Code Civ. Pro., §§ 1021, 1025, 1200, 1205.

In an action of foreclosure in which plaintiff asked an injunction to prevent defendants selling certain machinery, etc., the defendant, The-Globe Knitting Company, demurred for misjoinder of causes of action. On argument, September 25, the demurrer was overruled, with privilege-to answer in five days, on payment of thirty-five dollars costs to plaintiff. This defendant did not avail himself of the privilege, and on October 8-plaintiff entered judgment against this defendant, overruling this demurrer and for costs $73.34 against this defendant. Held, that plaintiff’s, practice was not correct. The judgment of September 25 should have-

p. 709

provided what was to be entered thereon. He was not authorized to enter a judgment for costs. The action was not severed; and the costs on the argument of the demurrer were part of the final costs in the action. Section 1021 onljr allows final judgment to be entered (where leave to plead over is given) in case no other issue remains to be disposed of. He could not enter a final judgment until the issues of fact raised by other defendants had been disposed of; not until the usual reference had been had against parties not appearing. The judgment of October 8 was simply interlocutory, because according to the definition of the Code, section 1200, it was not a final determination.

E. P. White, for app’lts; E. F. Bullard, for resp’t.

This is an action of foreclosure in which the plaintiff asks also the special relief of an injunction to prevent defendants from selling certain machinery, etc.

The defendant, The G-lobe Knitting Company, 'demurred for misjoinder of causes of action. On argument, September 25, the demurrer was overruled, with privilege to answer in five days, on payment of thirty-five dollars costs to plaintiffs. This defendant did not avail himself of this privilege,'and on October 8 the plaintiff entered a judgment against this defendant overruling this demurrer and for $73.34 costs against this defendant.

On the 26th of November this defendant moved to correct this judgment by inserting the word “interlocutory” and striking out the provision for costs and the docket of said judgment. This was made on an affidavit showing that plaintiff had commenced an action for sequestration, upon that judgment and for the appointment of a receiver..

This motion was denied.

The defendant, on December 17, appealed from this judgment of October 8. The plaintiff now moves to dismiss that appeal on the ground that it was not taken in time.

The plaintiff’s practice is not correct. The.judgment of September 25 should have provided what was to be entered, thereon. Sec. 1025.

He was not authorized to enter a judgment for costs. The action was not severed (section 1205), and the costs on the argument of the demurrer were part of the final costs in the action.

Section 1021 only allows final judgment to be entered (where leave to plead over is given) in case no other issue remains to be disposed of. He could not enter a final judgment until the issues of fact raised by other defendants had been disposed of, not until the usual reference had been had against parties not appearing. The judgment of October 8 was simply interlocutory because, according to the definition of the Code, section 1200, it was not a final determination.

Being interlocutory, if the defendant did not appeal

p. 710

from it in the proper time, he can only review it (if at all) by appeal from the final judgment, and that final judgment will be the judgment decreeing a foreclosure and sale, which can only be had when all the issues shall have been disposed of.

This appeal, therefore, must be dismissed. And we have stated what the practice should have been, and wherein the plaintiff is incorrect. As has been said above, the judgment of September 25 ought not to have provided for any final judgment because other issues remained to be disposed of, and the action could not properly be severed.

There is a motion to stay proceedings on an appeal from another order in this case on the ground of non-payment of costs That motion is denied.

Ingalls and Landon, JJ., concur.