Knickerbocker Co. v. Roskopf — 46 N.Y. St. Rep. 197

Majority

p. 197

The Knickerbocker Company, Resp’t, v. Charles I. Roskopf, Appl’t.

(New York Common Pleas, General Term,

Filed June 6, 1892.)

Headnote

Appeal-—Demurrer— City court of New York.

A judgment of the general term of the city court, affirming an interlocutory judgment sustaining a demurrer, with leave to plead anew, and directing that m default of such pleading final judgment may he entered, is only interlocutory and not a final judgment, and an appeal will not lie therefrom to the common pleas.

Appeal from an interlocutory judgment of the general term of the city court, affirming an interlocutory judgment of that court rendered at special term, and sustaining a demurrer to defendant’s counterclaim, with leave .to defendant to serve an amended pleading.

George Walton Green, for resp’t; Mitchell L. Erlanger, for app’lt.

The judgment of the general term of the court below, from which this appeal is attempted to be taken, does not finally adjudge plaintiff’s recovery upon the demurrer interposed to defendant’s counterclaims. The judgment purports to accomplish no more than to affirm the interlocutory judgment, which was directed at special term, and adjudged that the demurrer be sustained, with leave to defendant to “ plead anew ” within six days after its entry and service, or that in default of such pleading plaintiff may thereafter enter final judgment dismissing the counterclaims.

In Fuller v. Tuska, 43 St. Rep., 523 , we held that a judgment of the general term of the city court in all respects like the one under consideration is in itself only interlocutory, and not a final judgment, within the meaning of § 3191 of the Code of Civil Procedure, which is our only authority for entertaining appeals from the city court.

It was within the province of the general term of the city court to direct the entry of final judgment for the plaintiff upon its affirmance of the interlocutory judgment rendered at special term, Flatow v. Von Bremsen, 44 St. Rep., 302 , and had such a judgment been rendered, the determination of the general term would

p. 198

have been reviewable by us upon a direct appeal therefrom. As it is we are without jurisdiction.

Appeal dismissed, with costs.

Daly, Ch. J., concurs.