Kalvin v. Meyers

The order dismissing the complaint herein for non-prosecution was properly granted, and the order and the judgment entered thereon should be affirmed.

In view of the dismissal of the complaint, the court was correct in refusing to compel the defendants to accept' a notice of trial in the same action, and this order should be affirmed. Upon the appeal from the judgment only those intermediate orders specified in the notice of appeal come up for review as necessarily affect the final judgment. “It is only orders which, if reversed, would take away the foundation of the judgment that can.be reviewed on appeal from the judgment.” Raff v. Koster & Bial, 38 App. Div. 336, 56 N. Y. Supp. 997. The *142order entered on April 10, 1906, denying the plaintiff’s motion to strike out part of defendants’ answer, in no wise affects the foundation of the judgment appealed from here, and we can, therefore, not consider its propriety at this date.

Judgment and order affirmed, with $10 costs and disbursements. All concur.