Abbey v. Wheeler

• Decision Date: 25 February 1902
• Citation: 170 N.Y. 122,62 N.E. 1074
• Parties: ABBEY v. WHEELER et al.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 122

62 N.E. 1074

ABBEY

v.WHEELER et al.

Court of Appeals of New York.

Feb. 25, 1902.

Appeal from supreme court, appellate division, First department.

Action by Frank Richards Abbey against Jerome B. Wheeler and others. From a judgment entered on an order of the general term reversing an interlocutory judgment of the special term overruling a demurrer to the complaint, plaintiff appeals, and from an order of the appellate division (69 N. Y. Supp. 432) affirming a final judgment dismissing the complaint entered on an order of the general term sustainting a demurrer thereto he also appeals. First appeal dismissed, and judgment on second appeal reversed.Charles D. Cleveland and Harry W. Hayward, for appellant.

Eugene Frayer, for respondents.

O'BRIEN, J.

The only question presented by the pleadings in this case was the sufficiency of the complaint. It was met by a demurrer on the part of the defendant Wheeler, which raised the question whether it contained a statement of facts sufficient to constitute a cause of action. The special term held that it did, but the general term, then existing, held that it did not, and so reversed the special term, and gave the plaintiff leave to amend. The plaintiff did not amend, however, but suffered final judgment to be entered dismissing the complaint upon proof that the failed to avail himself of the permission to amend. But the appeal comes here now in such a questionable form that we are obliged to decide other questions than those raised by the demurrer. The merits of the controversy are obscured by questions of practice, somewhat in the nature of experiments, which we are required to solve, and which, if the counsel had in some way solved for themselves, would be a great relief to the court. The plaintiff brings two appeals to this court from the same judgment upon two separate records, both presenting the same question, namely, the sufficiency of the complaint. It is admitted that one or the other of these appeals must be dismissed, but we are left practically to find out for ourselves which appeal was properly taken, and which record we are to review. We cannot perceive from the elaborate briefs presented by the learned counsel for the plaintiff that they have yet come to any definite conclusion on the question, except to insist that, whatever we do with one or the other of the appeals, it should be without costs to the plaintiff. The two appeals, it is said, were taken for abundant caution, and in order to make it certain that the plaintiff could be heard in this court upon one record or the other. Why the plaintiff should be relieved from the costs of such an experiment is not very clearly perceived. If the practice was so doubtful as to justify two appeals as a matter of precaution, the law ought not to be settled at the defendants' expense.

On the 15th of December, 1900, the plaintiff appealed to this court from the final judgment dismissing the complaint. This appeal, I think, is regular. It brings up the final judgment and the interlocutory judgment, and therefore brings up all questions decided upon the issue on the demurrer. The fact that the complaint was dismissed long after the general term had passed upon the question at issue, and upon motion showing the default in another court, is of no importance. The judgment was entered upon the direction and by the authority of the genreal term, and therefore was a final and actual determination of the action in that court within the fair meaning of the statute. The special term decided nothing, but was a mere instrument to execute the judgment which the reviewing court had already pronounced. Adams v. Fox, 27 N. Y. 640;Stevens v. Bank, 162 N. Y. 253, 56 N. E. 628;Johnson v. Signal Co., 125 N. Y. 720, 26 N. E. 455;Elwell v. Johnson, 74 N. Y. 80;Smith v. Rathbun, 88 N. Y. 660. It is true that the judgment of the general term reversing the judgment and holding that the demurrer was well taken could not be reviewed here, as matter of right, until final judgment was entered. An appeal here before that event, or before the proceedings had reached that stage, would have been premature. But the general term directed a final judgment unless the plaintiff should amend within a certain time, and he failed to avail himself of the favor; so the final judgment already directed was then formally entered, and, when entered, became the actual determination of the general term, the same as if that court had not given leave to amend, but had simply dismissed the complaint. Hence the judgment of reversal, when so perfected, was appealable to this court as the final and actual determination of the general term upon the issue raised by the demurrer. It may be added that the final judgment bears no evidence upon its face that it was rendered at special term. So far as the record shows, it was entered by the clerk as upon default.

On April 8, 1901, the plaintiff brought a second appeal from the judgment of the appellate division affirming the final judgment, treating that as a judgment of the special term upon the default. It is obvious that the court below, in entertaining the plaintiff's appeal from this final judgment, could decide nothing except what it had decided before, and hence was practically reviewing one of its own judgments. The appeal to that court from the final judgment was, therefore, unnecessary, and unauthorized, since it had already directed upon the former appeal that, unless the plaintiff elected to plead over, his complaint should be dismissed; and it was dismissed, and this judgment of dismissal was the judgment of the general term, and not the judgment of the special term. The latter court only followed the directions of the former, and decided nothing with respect to the question at issue raised by the demurrer. But it is not necessary to enlarge this opinion by a discussion to show that the second appeal was improper. It is quite sufficient to say that, since the first appeal was regular, the second cannot be, as there is no authority for two concurrent appeals from the same judgment by the same party upon the same question. Nor is it a reasonable or tenable view of such a case to hold that, before a party can be heard in this court on the question of law raised by the demurrer, that question must be passed upon twice in the court below. The second appeal in this case is founded upon this theory. It should be observed that the case of Leonard v. Barnum, 168 N. Y. 41, 60 N. E. 1062,differs widely from this, since in that case the general term gave no direction for final judgment. In this case it did, and, as before remarked, when that direction was carried out, it became and was the judgment of the court that gave the direction, although it was entered in another branch of the same court where the record was filed and the formal motion made.

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