Rich v. Manhattan Railway Co. — 53 N.Y. St. Rep. 346

Majority

p. 346

Alexander Rich, App’lt, v. The Manhattan Railway Co. et al., Resp’ts.^[1]

(Court of Appeals,

Filed June 27, 1893.)

Headnote

Appeal—Conditional dismissal op complaint.

A judgment adjudging that plaintiff is not entitled to equitable relief, and directing a dismissal of complaint unless plaintiff, within twenty days from its entry or after entry of order on final appeal, serves notice that he elects to trv the action as one at law for damages, is not a final judgment, and is not appealable to the court of appeals.

Appeal from judgment of the New York common pleas, general term, affirming interlocutory judgment denying injunctive

p. 347

relief, and directing dismissal of complaint, unless plaintiff, within a specified time, elect to try the action as one for damages before a jury.

Leo C. Dessar, for app’lt; Brainard Tolles, for resp’ts.

The judgment in this action adjudged that the plaintiff was not entitled to equitable relief, and directed a dismissal of the complaint, with costs, unless within twenty days from its entry or, if an appeal was taken within twenty days after the enty of the order on the final appeal, the plaintiff 'served notice upon the defendants that he elected to try the action for damages to the premises described as an action at law before a jury and pay the costs incurred to the date of notice, and if the plaintiff failed to make such election within the time specified the defendants might enter an order dismissing the complaint, with costs.

This was plainly not a final judgment, and hence not appealable to this court, and we cannot, therefore, now consider or determine any of the questions involving the merits which have been discussed upon the briefs of the counsel for the plaintiff and the other property holders similarly situated.

The appeal must be dismissed, with costs.

All concur.