Oesterreicher v. Raisbeck — 51 N.Y. Super. Ct. 416

Majority

p. 416

IGNATZ OESTERREICHER, Appellant, v. JAMES RAISBECK, Respondent.

Decided March 2, 1885.

Headnote

Appeal from judgment overruling demurrer—Reversal, when not granted.

An appeal from a judgment overruling a demurrer and adjudging costs against the demurrant, raises no question for review, where it appears that the judgment was entered pursuant to an order overruling the demurrer, but giving leave to withdraw the demurrer on payment of costs, and to an interlocutory judgment entered in conformity to such order, and to an express waiver of the leave, and no appeal is taken from either the order, or the interlocutory judgment.

Where the appellant is not injured by the order below, the court will not reverse the order.

Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

p. 417

Appeal by plaintiff from judgment overruling his demurrer to the fifth defense set forth in defendant’s amended answer to the complainant, with costs.

The facts sufficiently appear in the opinion.

Wehle & Jordan, attorneys, and Henry Wehle, of counsel for appellant,

argued :—I. There is no allegation in the plaintiff’s complaint which impeaches either the sufficiency of the affidavits on which the order for the arrest of the plaintiff was granted, or the jurisdiction of the judge to make that order. Ñor is it in any manner claimed by the complaint that the process under which the imprisonment was had was void. This is clearly a complaint for malicious prosecution only (2 Addison Torts, Wood’s Ed. 1881, 13 ; Dusenbury v. Kielly, 58 How. Pr. 286 ). There being no cause of action for false imprisonment in the complaint, the fifth defense was properly demurred to (Code, § 494).

Phelps & Spooner, attorneys, and W. R. and C. W. Spooner, of counsel for respondent,

argued :—I. The complaint is so framed that at trial plaintiff could claim the cause of action to be for false imprisonment or malicious prosecution, as he might desire. The plea of the statute was proper.

II. The decree appealed from being based upon, and conforming to, the prior decree of January 4, 1884, and the order of December 6, 1883, after plaintiff’s waiver of the leave granted him ; and the order and the prior decree being not in review nor appealed from, the appeal must fall (Cameron v. N. Y. Eq. Life, 45 Super. Ct. 628 ; S. C., 46 Ib. 84).

The defendant, among other defenses that were good on their face, averred for a fifth defense, “that the cause of action set forth in the complaint herein, for alleged false arrest and imprisonment of the plaintiff, did not accrue within two years before the com. mencement of this action.” It is assumed that if the ac

p. 418

tion were for false imprisonment, the defense would be valid, and not valid if the action were for malicious prosecution.

The plaintiff demurred to this defense, on the ground ‘‘ that the same is insufficient in law upon the face thereof. ”

The court overruled the demurrer, on the ground that there were facts alleged in the complaint sufficient to sustain an action, either for malicious prosecution or false imprisonment. Thereupon an order was entered, “that said demurrer be and the same hereby is overruled, and that defendant have judgment thereon with costs to be taxed, but with leave to plaintiff to withdraw his demurrer within twenty days after entry and service of this order on payment of the taxed costs.”

As appears from the recitals contained in the judgment appealed from, the. costs were taxed at §36.10, and thereupon a so-called decree was entered and filed, overruling said demurrer with $36.10 costs to the defendant, but with leave to the plaintiff to withdraw the demurrer on payment of said costs ; and a copy of said decree with notice of entry thereof having been duly served on the attorneys for the plaintiff, and plaintiff having failed to withdraw said demurrer and pay said costs, and expressly waived the leave granted, a judgment was entered, which is the judgment appealed from, “that the demurrer interposed by plaintiff to the fifth defense set forth in defendant’s amended answer to the complaint herein, be and the same hereby is overruled, and that defendant recover of plaintiff, $36.10, his costs on said demurrer.”

The so-called decree referred to, is not contained in the appeal book. It evidently means an interlocutory judgment. The record also shows that neither the order nor the interlocutory judgment or decree has been appealed from. From all that can be learned and inferred, the judgment appealed from is the legitimate outgrowth of the order which we have not even been asked to review, and of plaintiff’s waiver. This being so, the judgment appealed from should be affirmed, with costs.

p. 419

Moreover, we think the plaintiff was not injured by the overruling of his demurrer. If, as he now claims, the complaint does not contain an action for false imprisonment, the defense of the statute of hmitations to such a cause of action cannot embarrass the conduct of his real cause of action. So, if further provision should have been made in the judgment as to its effect upon the issues remaining to be tried, or as to the time of the payment of the costs awarded by it, such provision may yet be made on a proper application to the court at special term.

Judgment affirmed, with costs.

Cases cited

Dusenbury v. Kielly 58 How. Pr. 286 N.Y.C.P. p. 417