Flatow v. Von Bremsen — 44 N.Y. St. Rep. 302

Majority

p. 302

Richard Flatow, Resp’t, v. Theodore Von Bremsen, App’lt.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

1. Pleading—Demurrer—Entry of final judgment.

The general term of the city court reversed an order of the special term overruling a demurrer, and directed final judgment to be entered for defendant, unless plaintiff served an amended complaint within six days. The plaintiff failed to serve his complaint, and defendant applied to the special term for final judgment, which was granted, and entered as a. judgment of the special term. Held, error; that judgment should have been entered as a judgment of the general term, as that court directed a, final judgment.

2. Same.

While § 1203 of the Code prescribes that judgment generally must be entered in the first instance pursuant to the direction of the court at a term held by one judge, this does not restrict the power of the general term, upon appeal from a judgment so entered, from making a direction for a different judgment.

8. Same.

The express power granted the general term by § 1224 of the Code to-render final judgment in case of an affirmance does not exclude the exercise of such power in the case of a reversal.

p. 303

Appeal from an order of the general term of the city court, affirming an order of the special term vacating a final judgment upon demurrer, entered by direction of the special term.

The defendant had demurred to the complaint and the special term had overruled his demurrer, ordering judgment for the plaintiff unless defendant answered within twenty days; and an interlocutory judgment to that effect wras entered, from which defendant appealed to the general term. The judgment was reversed, and the general term sustained the demurrer and directed final judgment to be entered for defendant dismissing the complaint, unless plaintiff served an amended complaint within six days. An interlocutory judgment to that effect was .entered at general term. The plaintiff failed to serve an amended complaint within the allotted time, and defendant thereupon applied to the special term of the city court for final judgment upon the demurrer, his motion was granted and final judgment ¡entered as a judgment of the special term. It is this final judgment which the city court has vacated.

The case was formerly before us upon an attempted appeal from such final judgment, but the appeal was dismissed for want >of jurisdiction of this court to entertain appeals from the special term of the city court. Flatow v. Von Bremsen, 36 St. Rep., 863 . Acting upon the suggestion in the opinion delivered by the general term upon that appeal, viz., that the proper final judgment to be entered was a final judgment of the general term of the city court, and that the plaintiff could apply to the city court to have the correct judgment entered, he moved the special term of that court to vacate the final judgment entered thereat as improper, irregular and unauthorized, which motion was granted and an order entered vacating said judgment. From the order of the general term of the city court affirming that order this appeal is-taken.

George W. Stephens, for app’lt; John Pi Schuchman, for resp’t.

The final judgment of the city court upon demurrer dismissing the complaint for failure to amend it within the time prescribed, should have been entered as a judgment of the general term, for the general term directed both an interlocutory .and a final judgment to that effect and there was no necessity to apply again to the special term. It is only where the court fails to direct final judgment that application must be made for it upon motion. Code, § 1222.

The direction of the general term required a final judgment from which an appeal would lie directly to this court, and it was irregular for defendant to disregard that direction and resort to the special term for a similar final judgment. The irregularity deprived plaintiff of a substantial right, viz., a direct appeal to this court, and involved the burden of delay and the costs of a further formal appeal to the general term in order to obtain a review of a final determination which it had already pronounced.

While § 1203 of the Code prescribes that judgment generally must be entered in the first instance pursuant to the direction of

p. 304

the court at a term held by one judge, this does not restrict the-power of the general term, upon appeal from a judgment so entered, from making a direction for a different judgment In the-case of judgment upon demurrer where the special term in the-first instance may order an interlocutory and also a final judgment, § 1021, that power may be exercised by the general term upon appeal from such interlocutory or final judgment. -Where-the interlocutory .judgment of the general term overrules a demurrer to a complaint it may direct final judgment to be entered upon default of answer, and even though the action be one in which the plaintiff could not have the relief he demanded without application to the court, Code, §§ 1214, 1215, the general term may direct final judgment for such relief. Smith v. Rathbun, 88 N. Y., 660 .

Appellant refers us to § 1224 of the Code, which provides that where an order or judgment is wholly or partly affirmed upon appeal to the general term and no issue of fact remains to be tried, the general term may in its discretion render final judgment unless it permits the appellant to amend or plead over ; and his contention is that this express grant of power to the general term in the case of an affirmance to render final judgment, excludes its-exercise in the case of a reversal. We cannot agree with this-construction. The authority granted by the Code to the court to direct both interlocutory and final judgment is nowhere confined to the court at special term after an appeal has been taken to the-general term. In the case of Smith v. Rathbun cited; the power of the general term to award the judgment which the special term could have allowed is not placed upon the authority of § 1224, although that was a case of affirmance. Section 1224 is-not cited in the opinion of the court as reported, but the position taken is that the court, whether acting at special or general term, is the same court and had the power to give such judgment as it-determined the party was entitled to.

The remaining questions raised by the appellant, i. e., loches on the part of the plaintiff in not moving earlier to correct the error in the entry of judgment and waiver of defect by taking an appeal from the unauthorized judgment, were proper for the consideration of the city court, but as they were not deemed sufficient in the exercise of discretion by that tribunal to justify a denial of the relief prayed for by the plaintiff, we cannot disturb the order upon any such ground.

Order affirmed, with costs.

Bischoff and Pryor, JJ., concur.