Redman v. Verplex Art Co.
| Court | New York Court of Appeals |
| Writing for the Court | McLAUGHLIN |
| Citation | 237 N.Y. 475,143 N.E. 650 |
| Decision Date | 01 April 1924 |
| Parties | REDMAN v. VERPLEX ART CO., Inc., et al. |
237 N.Y. 475
143 N.E. 650
REDMAN
v.
VERPLEX ART CO., Inc., et al.
Court of Appeals of New York.
April 1, 1924.
Action by Edward B. Redman against the Verplex Art Company, Inc., and others. From an order of the Appellate Division, First Department, dismissing an appeal (206 App. Div. 663,199 N. Y. Supp. 945) from a judgment of the Special Term which dismissed the complaint upon the merits, plaintiff appeals by permission.
Order reversed.
[237 N.Y. 475]Appeal from Supreme Court, Appellate Division, First department.
[237 N.Y. 476]W. N. Seligsberg and Clarence M. Lewis, both of New York City, and Donald Marks, of Rochester, for appellant.
Leon Kauffman, of New York City, for respondent Verplex Art Co.
Harry I. Stein, of New York City, for respondent Dix.
Frank I. Finkler, of New York City, for respondent Kauffman.
McLAUGHLIN, J.
[1][2][3][4] Both parties moved for judgment on the pleadings. The Special Term granted the defendants' and denied the plaintiff's motion. The plaintiff appealed to the Appellate Division, which affirmed, but gave plaintiff leave to serve an amended complaint within 20 days. Plaintiff did not amend, and at the expiration of that time an application was made to the Special Term for leave to enter a final judgment dismissing the complaint. Such leave was given, final judgment entered, and an appeal taken therefrom to the Appellate Division, which dismissed the same. From the order of dismissal the present appeal, by permission of this court, was taken.
I am of the opinion that the Appellate Division erred in dismissing the appeal. The dismissal was evidently upon the ground that the judgment appealed from was in effect a judgment of the Appellate Division. The final judgment dismissing the complaint was not a judgment of the Appellate Division, but of the Special Term, entered [237 N.Y. 477]upon proof to that court of plaintiff's failure to amend. The plaintiff in such circumstances had a choice of remedies. He might appeal directly to this court, in which event the only subject of review would be the interlocutory order. Civ. Prac. Act, § 590. He might appeal again to the Appellate Division, in which event the only subject of review would be the proceedings subsequent to the interlocutory order. Civ. Prac. Act, § 619. If those proceedings were confirmed, an appeal to this court with notice of intention to review the earlier proceedings would bring the entire record here.
There is no conflict between Leonard v. Barnum, 168 N. Y. 41,...
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Sultzbach v. Sultzbach
...Division for leave to appeal before entry of final judgment, but leave was denied. In the recent case of Redman v. Verplex Art Co., 237 N. Y. 475, 476, 143 N. E. 650, we held that upon final [238 N.Y. 355]judgment being rendered as in this case there were two methods of review which a party......
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Kade v. Sanitary Fireproofing & Contracting Co.,
...Plaintiff has seen fit to have the complaint dismissed [256 N.Y. 374]rather than bring in the new parties. Redman v. Verplex Art Co., 237 N. Y. 475, 478, 143 N. E. 650. He is a party aggrieved by the dismissal of his complaint. Lahens v. Fielden, 3 Abb. Dec. 1. The judgment appealed from is......
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Gambold v. MacLean
...judgment[254 N.Y. 361]* * * may, at the election of either party, be reviewed thereupon.’ See Redman v. Verplex Art Co., Inc., 237 N. Y. 475, 143 N. E. 650. The right to elect to bring up for review an interlocutory determination of the Appellate Division, where an appeal is properly taken ......
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Sultzbach v. Sultzbach
...Division for leave to appeal before entry of final judgment, but leave was denied. In the recent case of Redman v. Verplex Art Co., 237 N. Y. 475, 476, 143 N. E. 650, we held that upon final [238 N.Y. 355]judgment being rendered as in this case there were two methods of review which a party......
-
Kade v. Sanitary Fireproofing & Contracting Co.,
...Plaintiff has seen fit to have the complaint dismissed [256 N.Y. 374]rather than bring in the new parties. Redman v. Verplex Art Co., 237 N. Y. 475, 478, 143 N. E. 650. He is a party aggrieved by the dismissal of his complaint. Lahens v. Fielden, 3 Abb. Dec. 1. The judgment appealed from is......
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Gambold v. MacLean
...judgment[254 N.Y. 361]* * * may, at the election of either party, be reviewed thereupon.’ See Redman v. Verplex Art Co., Inc., 237 N. Y. 475, 143 N. E. 650. The right to elect to bring up for review an interlocutory determination of the Appellate Division, where an appeal is properly taken ......