Abbey v. Wheeler

We are of opinion that an appeal from the final judgment entered in this case in November, 1900, lies to this court. The action was brought for an accounting, and the defendant Wheeler demurred to the complaint. ■ The demurrer was overruled at the Special Term, and from an interlocutory judgment then entered the defendant appealed to the General Term of the Supreme Court, which, in March, 1895, reversed the intei’locutory judgment and sustained the demurrer, with leave to the plaintiff to plead over on payment of costs, within twenty days after the service of a copy of its order. The interlocutory judgment entered upon the decision of the General Term, also provided that if the plaintiff did not pay the costs and plead over within- the twenty days, the defendant Wheeler might enter judgment dismissing the complaint, with costs.

It appears that the plaintiff paid the costs but did not plead over, the time to plead being extended by consent of the defendant’s attorney until February, 1898. In November, 1900, the defendant Wheeler entered a final judgment by which the complaint was dismissed as to him, and for the recovery by him from the plaintiff of costs and an extra allowance granted by an order made at the Special Term in November, 1900. In the Code of Civil Procedure no provision seems to have been made for an appeal to the Court of Appeals from a final judgment such as this. It provides for an appeal to the Court of Appeals where final judgment is rendered after the^ affirmance upon appeal- to the Appellate Division of the Supreme Court of- an interlocutory judgment. (Code Civ. Proc. § 1336.) Here-the'General Term reversed the interlocutory judgment. We think the .final judgment, although directed, by the General Term, should- be regarded as a judgment of the. Special Term, and, in order to secure to the plaintiff a right of review, an appeal should be allowed to this court.

*453Considering the appeal as properly here, the decision of the General Term must control. The rights of the parties were settled by the decision of that court, and the rule of law governing the case was laid down by it. Under such circumstances, we must follow and abide by the decision of the General Term, the questions determined there being identical with those arising on this appeal. (Mygatt v. Coe, 142 N. Y. 81.)

Judgment affirmed, with costs.

Present — Van Brunt, P. J., Rumsey, Patterson, O’Brien and Ingraham, JJ.

Judgment affirmed, with costs.