Reidy v. Bleistift

The time to appeal directly from the order of July seventh had expired when the notice of appeal was served, and conceding (without so deciding) that that order is an intermediate order affecting the final judgment and entitled to review upon appeal from the final judgment (Code Civ. Pro., §§ 1301, 1316), inasmuch as the appeal from the final judgment herein has been dismissed, the appeal from the intermediate order falls, and the motion to dismiss that appeal must therefore be granted, with ten dollars costs. The disposition thus far made of the appeal taken by the defendant herein now leaves for our consideration the appeal from the order of July 29, 1899. Hpon a former hearing of the appeal it was held that the judgment wa£ excessive, it being for a greater sum thani the complaint justified, and, to that extent, we agree with the decision then made. The respondent now insists that the denial of the motion to set aside the inquest was a bar to the motion to vacate the judgment, but *182we do not agree with him in this contention. The two motions were aimed at different relief. The inquest was properly ordered and the motion to set it aside properly denied. The defendant was not entitled to that relief, hut when the judgment was entered and it then appeared that the recovery was for more than the cause of action set forth in the complaint permitted, then the defendant was entitled to have the judgment so entered modified, and the recovery therein limited to the amount justified hy the complaint.

The order appealed from will he reversed and the motion to vacate the judgment granted, without costs, unless within ten days the plaintiff stipulates to reduce the judgment so that the plaintiff shall recover $153, principal, with interest thereon from January 1, 1897, together with the costs of the action and a five per cent, extra ’allowance upon the amount of principal and interest; in which event the order of July 29, 1899, will he affirmed, without costs.

Has gall and McCarthy, JJ., concur.

Order reversed and motion granted, without costs, unless plaintiff stipulates to reduce judgment so that plaintiff shall recover $153, principal, with interest from January 1, 1897, together with costs, in which event, order affirmed, without costs.