Wright v. Deniston — 59 N.Y. St. Rep. 551

Majority

p. 551

Andrew S. Wright, Resp’t, v. Benjamin F. Deniston et al., App’lts, et al., Def’ts.

(New York Common Pleas, General Term,

Filed June 4, 1894.)

Headnote

Appeal—Dismissal.

Where the affirmance of a judgment concludes discussion as to the substantial right claimed to have been affected by an order directing compliance therewith, an examination into the merits of such order will, in no event, be of beneficial effect to appellant on appeal therefrom.

Appeal from an order made at special term, directing compliance with certain terms of a judgment rendered at equity term, as an alternative to the defendants’ Shaw and Cuthbert being adjudged in contempt.

Qratz Nathan, and John C. Shaw, for app’lts; Charles B. Meyer, for resp’ts.

Appellant Deniston claimed that the order appealed from affected a substantial right, in that it required a transfer to plaintiff of the certificate deposited with the clerk, this transfer being an essential part of the relief granted to plaintiff, as against appellant, by the judgment appealed from.

The rights of Shaw and Cuthbert, the parties affected personally by the order, are not before us for determination; the appeal as to the former having been dismissed upon the argument and the latter having failed to appeal. The defendant Deniston was not a party of the proceeding in which this order was made, but points of distinction between the present case and that of Ross v. Wigg, 100 N. Y. 246 , may be found in view of the nature of this appellant’s interest. Be that as it may, our affirmance of the judgment in this action concludes discussion as to the substantial right • claimed to have been affected, and examination into the merits of

p. 552

the order would in no event be of beneficial effect to appellant Appeal dismissed without costs.

Daly, 0. J., and Pryor, J., concur.