Waldo v. Schmidt

• Citation: 198 N.Y. 193,91 N.E. 521
• Parties: WALDO et al. v. SCHMIDT.
• Decision Date: 22 March 1910
• Court: New York Court of Appeals

198 N.Y. 193

91 N.E. 521

WALDO et al.

v.SCHMIDT.

Court of Appeals of New York.

March 22, 1910.

Appeal from Supreme Court, appellate Division, First Department.

Action by Eugene L. Waldo and others against Fedor Schmidt, individually, etc. From a judgment for plaintiffs, defendant appeals. Plaintiffs move to dismiss appeal, in so far as it attempts to appeal from an interlocutory judgment. Motion denied.

See, also, 124 App. Div. 919,108 N. Y. Supp. 1149; 132 App. Div. 929,117 N. Y. Supp. 1149.

Clarence De Witt Rogers, for the motion.

Martin L. Stover, opposed.

HAIGHT, J.

It is not our practice to entertain motions to dismiss appeals in part, or to determine the precise questions brought up for review in advance of the argument of the case. We have thought it wise, however, in this case to call attention to the defect in the appellant's practice, as it may facilitate the final disposition of the case. It appears from the moving affidavits that, upon the trial of the action before the court, an interlocutory judgment was ordered, which was entered on the 17th day of June, 1907, under which a referee was appointed to take and state an account; that thereupon an appeal was taken from the interlocutory judgment to the Appellate Division, which resulted in a judgment of affirmance. It further appears that an accounting was then had before the referee, upon which final judgment was entered, and an appeal taken then to the Appellate Division, where the judgment was affirmed, and then an appeal was taken to this court, in which the appellant gives notice that he intends to bring up for review the interlocutory judgment entered on the 17th day of June, 1907, but does not include in the notice an intent to review the judgment of the Appellate Division affirming the same, nor does he include that judgment in the record filed in this court for review.

The appeal appears to have been taken pursuant to the provisions of section 1350 of the Code of Civil Procedure, the concluding paragraph of which is as follows: ‘If an appeal is taken, to the Court of Appeals, from the determination of the Appellate Division upon the appeal from the final judgment, the determination of the Appellate Division, affirming the interlocutory judgment, * * * may, at the election of either party, be reviewed thereupon.’ In the case of Rich v. Manhattan Ry. Co., 150 N. Y. 542, 44 N. E. 1097, it was determined that ‘the election of either party,’ as provided for in section...