Will v. Barnwell

• Decision Date: 18 January 1910
• Citation: 197 N.Y. 298,90 N.E. 817
• Parties: WILL v. BARNWELL.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 298

90 N.E. 817

WILL

v.BARNWELL.

Court of Appeals of New York.

Jan. 18, 1910.

Action by John Will against Charles B. Barnwell. From a final judgment at Special Term dismissing the complaint (118 N. Y. Supp. 1003) entered after the Appellate Division had reversed an interlocutory judgment overruling a demurrer to the complaint, plaintiff appealed, and defendant moves to dismiss the appeal. Appeal dismissed.

This action was brought to recover damages for the alleged refusal of the defendant to comply with the terms of a judgment of the Supreme Court requiring him to specifically perform a contract for the exchange of real estate. A demurrer to the complaint was overruled at Special Term with leave to the defendant to plead over on payment of costs, and an interlocutory judgment was entered accordingly on the 21st of October, 1908. The defendant appealed, and the Appellate Division reversed with leave to the plaintiff to plead over within 20 days upon payment of costs. 130 App. Div. 906,115 N. Y. Supp. 1149. The plaintiff, without obtaining leave from the Appellate Division, appealed to the Court of Appeals from the order of reversal, and this court dismissed the appeal on the 4th of May, 1909. 195 N. Y. 561, 88 N. E. 1135.

The plaintiff failed to plead within the 20 days allowed by the Appellate Division, and moved at Special Term to compel the defendant to enter a final judgment dismissing the complaint, so that an appeal might be taken therefrom to the Court of Appeals, and on the 20th of September, 1909, the motion was granted. Final judgment was entered accordingly on the 15th, of October, 1909 (118 N. Y. Supp. 1003), and on the 1st of November following the plaintiff appealed to this court with notice of intention to bring up for review the order of the Appellate Division. The defendant now moves to dismiss that appeal.

Daniel V. Murphy, for the motion.

Gordon F. Matthews, opposed.

VANN, J. (after stating the facts as above).

This motion involves the interpretation of section 1336 of the Code of Civil Procedure, which is as follows: ‘Where final judgment is rendered in the court below, after the affirmance, upon an appeal to the Appellate Division of the Supreme Court, of an interlocutory judgment; or after the refusal, by the Appellate Division, of a new trial, either upon an application, made, in the first instance, at a term thereof, or upon an appeal from an order of the Special Term, or of the judge before whom the issues, or questions of fact, were tried by a jury; the party aggrieved may appeal directly from the final judgment to the Court of Appeals, notwithstanding that it was rendred at a Special Term, or at a Trial Term, or pursuant to the directions contained in a referee's report. But such an appeal brings up, for review, only the determination of the Appellate Division of the Supreme Court, affirming the interlocutory judgment, or refusing the new trial.’

This section has been unfortunate in its practical effect. It was intended to save time and expense by allowing an appeal directly to the Court of Appeals from a final judgment rendered by the Special Term after the affirmance by the Appellate Division of an interlocutory judgment, or the refusal of a new trial by the Appellate Division, without the useless formality of a second appeal to the Appellate Division before an appeal could be taken to this court. Unfortunately the Legislature, for some reason that we cannot understand, limited the application of that part of the section relating to interlocutory judgments to cases of affirmance by the Appellate Division. Why cases of reversal should not also have been included we are unable to say, for convenience would have been promoted and time and money saved if the section had been given a general application. While there are not as many cases of reversal as of affirmance, there are enough to make uniformity and equal right of appeal desirable. The section has proved a pitfall to the bar, for it has been quite generally assumed that it applies to all final judgments...