Leonard v. Barnum

• Decision Date: 10 July 1901
• Citation: 60 N.E. 1062,168 N.Y. 41
• Parties: LEONARD v. BARNUM et al.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 41

60 N.E. 1062

LEONARD

v.BARNUM et al.

Court of Appeals of New York.

July 10, 1901.

Motion for reargument denied.

For former report, see 60 N. E. 1115, 167 N. Y. 595.

LANDON, J.

This was an appeal from a final judgment sustaining the defendant's demurrer to the complaint and dismissing the complaint upon the merits, with costs, entered in Otsego county November 9, 1900. The defendant demurred to the complaint. The special term overruled the demurrer April 10, 1888, and gave defendant leave to answer. The plaintiff entered interlocutory judgment pursuant to the order. The defendant did not answer, and plaintiff entered final judgment June 26, 1888. The defendant appealed to the general term, Fourth department. That court, after hearing the appeal, reversed the order, interlocutory and final judgments, and gave the plaintiff leave, to amend his complaint within 20 days on payment of costs, but contained no direction for final judgmentin case of plaintiff's default. This order was entered November 13, 1888. The plaintiff did not amend his complaint, but procured the special term order, upon which, pursuant to section 1222, Code Civ. Proc., he entered the final judgment of November 9, 1900, from which he now appeals. We have reviewed the grounds upon which we dismissed the appeal, and now state them: The appeal must be one that could have been taken under the Code of Civil Procedure as it was December 31, 1895 (section 190). Actual determinations made at general term of the supreme court were appealable under section 190 when they consisted of final judgments affecting the title to real property, or if-and such is this case-the matter in controversy was not less than $500. So were interlocutory judgments entered upon the decision of a demurrer, provided the general term should certify that the question arising therein was of sufficient importance to render a decision by the court of appeals desirable before proceeding further. Under sections 1336, 1350, actual determinations of the general term affirming an interlocutory judgment in the court below, or after the denial by the general term of a motion for a new trial, were appealable after the subsequent entry of the final judgment in the court below. Such final judgment of the court of first instance gave effect to the actual determination of the general term. As this is an appeal from a final judgment, we need not consider the appealability of orders. The final judgment must be one directed by the general term, or its...