Johnson v. Union Switch & Signal Co.

This appeal is from a general term judgment affirming an order and an interlocutory judgment of the special term, which sustained the defendant’s demurrer to the complaint, with leave to amend within a certain time on payment of, costs. The appeal to this court was taken more than sixty days after the service upon the appellant of a copy of the judgment at general term and notice of entry thereof, and this motion is to dismiss the appeal for not having been taken within the time prescribed by law. The appellant argues that the judgment is a final one and that he, therefore, has noticed his appeal in season. But he is in error, for the judgment was not the final judgrrtent which we are authorized to review upon an appeal. That must be a final determination of the rights of the parties. The judgment which was affirmed by the general term was interlocutory and in no respects final. It was entered before the expiration of the time allowed by the order for the service of an amended complaint, and, by its very terms, gave leave to the defendant to enter final judgment dismissing the complaint. The judgment of the general term, from which the appeal here was taken, merely adjudged that the order and interlocutory judgment sustaining the demurrer should be affirmed. That is not a judgment which finally determined the rights of the parties, for no judgment could accomplish that which did not dismiss the complaint. That was something which remained to be done be