McKeown v. Officer

• Decision Date: 06 October 1891
• Citation: 28 N.E. 401,127 N.Y. 687
• Parties: McKEOWN et al. v. OFFICER et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 687

28 N.E. 401

McKEOWN et al.

v.OFFICER et al.

Court of Appeals of New York,

Second Division.

Oct. 6, 1891.

Appeal from supreme court, general term, second department.

Action by Charles McKeown and others against John Officer, executor, and others. Defendants appeal from the affirmance of a judgment in favor of plaintiffs entered upon a decision of the court at special term. Dismissed. For decision of general term, see 6 N. Y. Supp. 201.

Henry Marshall, for appellants.

Jacob Brenner, ( Charles J. Patterson, of counsel,) for respondents.

POTTER, J.

The respondents upon the argument of the appeal raised the preliminary objection that the judgment of the general term affirming the judgment of the special term was not appealable to this court; that the judgment required an accounting to be had in accordance with certain principles of law declared in the special term judgment, appointed a referee for that purpose, and required him to make a report thereof to that court. The appeal to this court was taken before the coming in of the referee's report, and, so far as appears from the record presented to this court, no report of the referee has been made, and no judgment has been entered upon any report by the referee.

The first question to be considered upon this appeal is whether the judgment of the general term is appealable to this court, and the determination of that question depends upon the nature and character of that judgment,-whether it is interlocutory or final. The rule limiting appeals to this court from final judgments has prevailed for a long time, and the provisions of the various Codes, while shifting in many, has been steady in this respect, and this proposition is supported by an unbroken current of authorities, as is illustrated in a few of the cases herein cited. In the case of Victory v. Blood, 93 N. Y. 650, the decision, as expressed in the syllabus of the report, is as follows:‘An appeal may be taken to the general term from an interlocutory judgment, but such judgment can only be reviewed in this court on appeal from the final judgment.’ In King v. Barnes, 107 N. Y. 645, 13 N. E. Rep. 799, this court held: ‘An appeal may not be taken to this court from an interlocutory judgment. A judgment which, although it finally determines certain matters in controversy, orders an accounting before a referee, is an interlocutory judgment.’ The judgment under review contains or presents both features of that proposition, viz., the determination of certain matters of law in controversy between the parties, and orders an accounting before a referee upon the principles laid down or declared in the judgment. Judge EARL, in writing the opinion of the court in Raynor v. Raynor, 94 N. Y. 248, uses this language: ‘There is, however, no provision anywhere authorizing such appeals to this court;’ and adds: ‘We are not concerned with the wisdom or utility of the provisions which we have referred to. They are plain, and must control.’ The last case was an action for the admeasurement of dower, requiring, and the interlocutory judgment required, proof to be taken before a referee, and a report thereof to be made to this court. In Walker v....