Dick v. Livingston — 4 N.Y. St. Rep. 202

Majority

p. 202

William H. Dick, App’lt, v. Henry W. Livingston, Resp’t.

(Supreme Court, General Term, Third Department,

Filed September, 1886.)

Headnote

Appeal—Notice of—Upon appeal from a final judgment, an interlocutory JUDGMENT CAN NOT BE RECOVERED UNLESS SUCH INTENTION IS STATED IN THE NOTICE OF APPEAL—CODE ClV. PRO. § 1301.

A demurrer to the complaint in an action was sustained and decision rendered that the defendant was entitled to judgment on the demurrer, with costs, with liberty however to the plaintiff to amend the complaint on the payment of costs, and directing the entry of an interlocutory judgment in accordance with such decision. Costs were taxed by the defendant and entered. The interlocutory judgment directed by the, decision, and the t rms upon which an amendment was permitted not being complied with in due time fipal judgment was entered, dismissii g the complaint with costs. The plaintiff appealed to the general term from such final judgment, but made no mention in the notice of appeal of an intention to review the int rlocntory judgment on appeal. Held, that the appellant was precluded from reviewing the interlocutory judgment. Code Civil Pro. §1301.

Beale & Beale, for app’lt; R. E. Andrews, for resp’t.

Appeal from a final judgment in favor of the defendant on demurrer to the complaint.

The point is taken that the appellant cannot be heard on the merits, for the reason that the notice of appeal does not state an intention to review the interlocutory judgment in pursuance of which the final judgment appealed from was entered. See Code Civil Procedure, § 1301. This point of objection necessitates a recital of the several steps taken in the case to final judgment and to the appeal therefrom.

The issue of law raised by the demurrer was disposed of at special term by a decision declaring the defendant entitled to judgment on the demurrer, with costs, with liberty, however, to the plaintiff to amend the complaint on payment of costs, and directing the entry of an interlocutory judgment in accordance with such decision. The defendant thereupon procured his costs to be adjusted and

p. 203

entered an interlocutory judgment as authorized by such decisión, and the terms, upon which an amendment was permitted, not having been complied with in due time and manner, as provided in the interlocutory judgment, he then entered final judgment dismissing the complaint, with •costs. Thereupon the plaintiff appealed to the general term from such final judgment, but made no mention in the notice of appeal of an intention to review the interlocutory judgment on the appeal.

Now, it seems that the defendant was strictly regular in his practice. The decision disposing of the issue of law was strictly in accordance with section 1021 of the Code of Civil Procedure, as will be seen on reference to it in the appeal book.

It declared the rights of the parties on the demurrer, directed the entry of an interlocutory judgment, with the provision as to the right to amend the complaint, and also directed final judgment in case of failure to comply with its provisions, giving the right to amend.

The decision was not appealable, but stood as does a decision by a referee or a judge on a trial without jury, which declares ■ the rights of the parties and directs judgment. Section 1021. So here it gave direction for the entry of an interlocutory judgment, from which an appeal might be taken pursuant to section 1319 of the Code. But here no appeal was taken from the interlocutory judgment, and its provisions permitting an amendment of the complaint not being complied with, final judgment was in due time and form entered, as theretofore ha and by the interlocutory judgment was authorized and directed. From this final judgment. the present appeal was taken, but without stating in the notice of appeal an intention to review the inteiiocutory judgment, aiad consequently by sections 1301 and 1316 of the Code, the appellant is precluded from reviewing such judgment.

Thus the interlocutory judgment stands as the settled law of the case untouched by the appeal. Patterson v. McCunn, 38 Hun, 531 , on page 534; see, also, other cases there cited; also Reese v. Smyth, 95 N. Y., 615 . The decisions in these cases are full to the point, and render further discussion of it out of place, and they also go to the length of holding that the notice of appeal in this case is not even open to amendment by inserting therein an intention to bring up the interlocutory judgment for review, were a motion made for that purpose. Piper v. Van Buren, 27 Hun, 381 , remarks of Hardin, P. J., on pages 388, 389; Fry v. Bennett, 16 How., 385 , and other cases above cited.

There are two modes provided for reviewing an interlocutory judgment like the present. One on direct

p. 204

appeal therefrom, another on an appeal from the final judgment, with a specification in the notice of appeal of an intention to bring up the interlocutory judgment for review. This, however, permits but one examination of the merits by the general term, as will be seen on refei ence to section 1316 of the Code. We deem it entirely plain that the merits of this case, on the issue of law, are not before the court on' this appeal. The interlocutory judgment stands on the record as the law of the case. The appeal does not bring it up for examination, inasmuch as an intention to review it is not specified in the notice of appeal. The interlocutory judgment remaining untouched by the appeal, the final judgment in pursuance of it is-right and must be affirmed.

It may not -be out of place to observe that we are of the opinion, after an examination of the case on the merits, that it was correctly- disposed of by the special term, and for the reasons given in the opinion then written.

Judgment appealed from affirmed, with costs.

Present—Bockes, P. J., Landón and Parker, JJ.