Redman v. Verplex Art Co.
| Decision Date | 01 April 1924 |
| Citation | 237 N.Y. 475,143 N.E. 650 |
| Parties | REDMAN v. VERPLEX ART CO., Inc., et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
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.
Appeal from Supreme Court, Appellate Division, First department.
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.
[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 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, 60 N. E. 1062,Abbey v. Wheeler, 170 N. Y. 122, 130,62 N. E. 1074,McNamara v. Goldan, 194 N. Y. 315,84 N. E. 440,Will v. Barnwell, 197 N. Y. 298, 90 N. E. 817, and Baumert v. Malkin, 231 N. Y. 509, 132 N. E. 867, on the one hand, and Silverstein v. Standard Accident Insurance Co., 221 N. Y. 332, 117 N. E. 307, and Rose v. Bristol, 222 N. Y. 11, 117 N. E. 1057, on the other.
In the first group of cases the Appellate Division did not itself grant or direct the entry of a final judgment. Either there was leave to amend, or else some other proceedings had to be taken in the court below before final judgment could be entered. Vose v. Conkling, 159 App. Div. 201,144 N. Y. Supp. 1. That is the situation here. The statement in Rose v. Bristol, supra, at page 13 (117 N. E. 1057), that in such circumstances a second appeal to the Appellate Division is sometimes not only permissible, but necessary, must be read in the light of the statute in force at that time. The interlocutory order referred to was one of reversal, not of affirmance, and in such circumstances a direct appeal to this court from the final judgment of the Special Term was not permitted for the review of interlocutory proceedings till an amendment of the statute assimilated the practice upon reversal to the practice upon affirmance. Will v. Barnwell, supra; Civ. Prac. Act, § 590. What was said in Rose v. Bristol was correct at the time of the decision, but must be modified to-day as a guide to present practice. The present rule is that whenever the judgment of the Special Term is based upon an interlocutory order of the Appellate Division, there is open to the aggrieved party the choice of remedies above stated.
In the second group of cases the ...
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Gambold v. MacLean
...affirming the interlocutory judgment* * * 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 p......
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Sultzbach v. Sultzbach
...Appellate 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 judgment being rendered as in this case there were two methods of review which a party cou......
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Kade v. Sanitary Fireproofing & Contracting Co.
...trial was to proceed. Plaintiff has seen fit to have the complaint dismissed 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......