Flatow v. Von Bremsen — 36 N.Y. St. Rep. 863

Majority

p. 863

Richard Flatow, Pl’ff, v. Theodore Von Bremsen, Def’t.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Judgment—Entry of final, after failure to comply with terms of INTERLOCUTORY JUDGMENT OF GENERAL TERM OF CITY COURT.

A judgment for defendant, on demurrer, was reversed by the general term of the city court and an interlocutory judgment was ordered entered, dismissing the complaint unless plaintiff complied "with certain terms. He did not do this; and upon proof of his failure the defendant procured from a special term of the city court an order for final judgment dismissing the complaint and entered said judgment. Held, error. The judgment which should have been entered was the final judgment of the general term of the city court.

3. Appeal—When it cannot be taken to the common pleas.

Ho appeal can be taken, under Code Civil Procedure, § 3191, to the common pleas, from an order entered at a special term of the city court.

Appeal from a judgment reversing an interlocutory judgment overruling a demurrer to the complaint herein.

John P. Schuchman, for app’lt; George W. Stevens, for resp’t.

The action was commenced in the court of Flew York to recover damages for alleged slander. The defendant demurred to the complaint. The demurrer was overruled at the special term, and an interlocutory judgment entered accordingly. From this judgment an appeal was taken by the defendant to the general term of the city court, where it was reversed and an interlocutory judgment ordered, that the complaint be dismissed, with costs to¡ defendant, unless within six days from the service of a copy of the interlocutory judgment plaintiff should pay to the defendant the costs of the demurrer and of the appeal, and amend his complaint.

p. 864

On this decision of the general term, an interlocutory judgment in proper form was entered. The order of the general term also provided that in case the plaintiff should not amend his complaint aud pay the costs as provided,'final judgment should be entered ^against him dismissing the complaint.

Thereafter, on proof of plaintiff’s failure to avail himself of the leave granted by the interlocutory judgment, the defendant applied to the special term of the city court for an order for judgment, which was granted, and final judgment was then entered in pursuance of said order of the special term of the said court This was an improper judgment. The final judgment which the plaintiff was entitled to, and which he should have entered, was the final judgment of the general term. The judgment appealed from thus entered upon the order of the special term is not appeable directly to this court.

It is hardly necessary'to say that no appeal from the order of the general term to this court, under § 3191 of "the Code of Civil Procedure, is authorized. It was plainly the duty of the appellant when he sought to appéal to this court, after he found that an incorrect final judgment had been entered in pursuance of the decision of the general term, to apply to the court and have a correct final judgment entered, from which he could appeal. His right of appeal, however, is not cut off by his failure to do so. He can apply to have a correct judgment entered, and when that has been done he can appeal from it to this court.

His present appeal, however, must be dismissed, with ten dollars costs.

Allen, Bischoff and Pryor, JJ., concur.