Summary
In Fox v. Matthiessen (155 N.Y. 177) the word "intermediate," as used in section 1316, was said to mean "between the two extremes of service of summons and entry of judgment."
Summary of this case from Smith v. ThompsonOpinion
Argued January 28, 1898
Decided March 1, 1898
James M. Hunt for appellants.
Elihu Root for respondent.
The record before us contains a notice of appeal not only from the judgment entered upon the order of the General Term of the second department, affirming a judgment entered upon a verdict in favor of the defendant, but also from another and separate order of that court, dismissing an appeal taken from an order denying a motion to set aside the verdict and for a new trial, upon the ground of misconduct of a juror, and further, from an order denying a motion to resettle such order. The notice of appeal to the General Term from the judgment distinctly stated that the plaintiffs intended to bring up for review at the same time the orders to which we have referred. The General Term held that such orders were not "intermediate," and, therefore, not brought up for review. We think otherwise. Section 1316 of the Code provides that "an appeal, taken from a final judgment, brings up for review, an interlocutory judgment, or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment; and which has not already been reviewed, upon a separate appeal therefrom, by the court * * *."
These orders had not been reviewed upon a separate appeal; they necessarily affected the final judgment, for if the motion had been granted a judgment could not have been entered, and they were "intermediate" orders in the sense in which that word is employed in the sections of the Code bearing upon that subject, because made after the commencement of the action and before the entry of judgment.
The trial resulted in a verdict by the jury in favor of the defendant on the 12th day of April, 1894. On the same day a motion was made upon the minutes for a new trial, which was at once denied. May 5th the plaintiffs moved the court at Special Term for a new trial on affidavits alleging misconduct on the part of a juror; the motion was denied, and later, and on May 26th the court also denied in part a motion to resettle the order entered therein. Subsequently, but not until June 16th, the defendant's counsel caused judgment to be entered.
Within the letter of the statute, therefore, these orders were intermediate, and they are not without the spirit of it, because the defendant might have entered his judgment before the plaintiffs could have obtained a decision of their motion.
The object of the statutory provisions on this subject is to prevent multiplicity of appeals in the same action. The legislature might have specified the different orders which could thus be brought up, but it chose instead to use general language, broad enough to include any order which necessarily affects a final judgment and is "intermediate," that is, between the two extremes of service of summons and entry of judgment.
We are referred to Selden v. D. H. Canal Co. ( 29 N.Y. 634) for an expression of opinion by this court to the effect that such orders are not intermediate. The question in that case arose under section 11 of the old Code of Procedure. An examination fails to disclose with certainty whether the orders denying motions for a new trial, on the ground of misconduct of a juror, were made before or after entry of judgment. Judge SELDEN'S discussion of the matter, however, indicates that they were made afterwards, for, after denying that they were "intermediate" orders, he said "they were not summary applications after judgment within the 3rd subdivision of the same section. That provision only relates to orders which recognize the original regularity and validity of the judgment, and are based on facts and circumstances occurring subsequently." The conclusion most naturally drawn from this argument is, that the orders were made after judgment, but based on facts occurring prior to its entry. That case is not, therefore, an authority on this question.
Our conclusion is, that the record presents a question which the General Term should have passed upon and did not — a question which the appellants are entitled to have considered, but which this court is without power to consider.
The order dismissing the appeal should be reversed, and the case remitted to the Appellate Division of the second department, to consider the questions presented by the appeal taken from such orders.
This practice is in accordance with Matter of De Camp ( 151 N.Y. 557, p. 564).
All concur, except GRAY, J., absent, and BARTLETT, J., not voting.
Order reversed.