Sultzbach v. Sultzbach

• Decision Date: 03 June 1924
• Citation: 238 N.Y. 353,144 N.E. 638
• Parties: SULTZBACH v. SULTZBACH.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 353

144 N.E. 638

SULTZBACH

v.SULTZBACH.

Court of Appeals of New York.

June 3, 1924.

Action by Adele T. Sultzbach against George F. Sultzbach. From a judgment entered upon an order of the Appellate Division (208 App. Div. 767,202 N. Y. Supp. 955) affirming an order of the Special Term and granting defendant's motion for a dismissal of the complaint, plaintiff appeals.

Appeal dismissed.

Appeal from Supreme Court, Appellate Division, First Department.

Henry G. Wiley and Myron Sulzberger, both of New York City, for appellant.

Maurice Smith and Henry Epstein, both of New York City, for respondent.

CRANE, J.

The defendant made a motion to dismiss the complaint for insufficiency. The order granting the motion was affirmed by the Appellate Division, First Department, which granted leave to the plaintiff to serve a further amended complaint within 20 days. Not having taken advantage of this permission, an order was entered by the Special Term upon an affidavit showing this fact dismissing the complaint followed by a final judgment of dismissal and directing the payment of costs and disbursements as taxed. From this final judgment the plaintiff has appealed to this court without obtaining leave of the Appellate Division. He did apply to the 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 could adopt. The opinion states:

‘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.’

The appellant in this case has adopted the method of section 590. A final judgment has been rendered in the court below after the affirmance of an interlocutory judgment by the Appellate Division. He may therefore, pursuant to that section, appeal directly from this final judgment to this court. The appeal, however, brings up for review only the determination of the Appellate Division. This determination, however, was an unanimous affirmance. Section 588 of the Civil Practice Act specifies the cases which may be brought to this court after an unanimous affirmance without leave to appeal being granted either by the Appellate Division or by this court. This case is not one of them. Section 588 must be read in connection with section 590. After an affirmance of an...