Zunz v. Heroy — 52 N.Y. St. Rep. 123

Majority

p. 123

Paul Zunz, Resp't, v. James H. Heroy et al., App'lts.

(New York Common Pleas, General Term,

Filed April 3, 1893.)

Headnote

Appeal—Interlocutory judgment.

An appeal from a final judgment brings up for review an interlocutory

p. 124

judgment only where it has not already been reviewed upon a separate appeal. Where such interlocutory judgment has been affirmed at general term upon a separate appeal, it is conclusive.

Appeal from a filial judgment for plaintiff on the referee’s report.

Action for an accounting for the sales of merchandise consigned by plaintiff to defendants.

Otto Horwitz, for resp’t; W. W. Niles and Henry Thompson, for app’lts.

appeal from a final judgment brings up for An review an interlocutory judgment which has not already been reviewed upon a separate appeal therefrom. Code Civ. Pro., § 1316. The interlocutory judgment in this action was affirmed at general term upon appeal by the present appellant, Zunz v. Heroy, 15 Daly, 411 ; 28 St. Rep., 182 , and is, therefore, conclusive upon us.

The closest scrutiny of the evidence and proceedings before the referee on the accounting directed by the interlocutory judgment, which involved the examination of much testimony and numerous exhibits, labor which the many inaccuracies in the brief of appellants’ counsel did not tend to diminish, has not enabled us to discover any error. The referee’s findings of fact are abundantly supported by the evidence, and his conclusions of law are fully warranted by the facts found.

The judgment and orders should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.