Summary
In Jackman v. Hasbrouck (168 App. Div. 256) it appeared upon the trial of the action that a motion was made to dismiss the complaint which was denied.
Summary of this case from Fine v. CumminsOpinion
May 25, 1915.
Henry Waldman [ Harlan Moore with him on the brief], for the appellants.
Frank B. Lown, for the respondents.
When this action came on for trial at Special Term in Dutchess county, and, at the opening thereof, four of the defendants moved to dismiss the complaint on the ground that the court was without jurisdiction of the subject-matter of the action. The motion was denied and the trial proceeded and is still continuing. A formal order was entered on the denial of the motion to dismiss, and an appeal was taken from the order. This appeal is now before this court, although, as conceded on the oral argument, the action is still in the process of trial and no judgment, interlocutory or otherwise, has been entered.
According to long-settled rules of practice the denial of a motion made at a trial to dismiss the complaint is reviewable only on an appeal from the judgment made in the action. ( Cosgriff v. Dewey, 89 Hun, 4.) The appellants contend that their motion and the ruling of the trial court upon it should be considered as a motion for judgment upon the pleadings under section 547 of the Code of Civil Procedure, which provides: "If either party is entitled to judgment upon the pleadings, the court may upon motion at any time after issue joined give judgment accordingly." Where an order directing or denying judgment upon the pleadings has been made under section 547, as aforesaid, it is appealable directly. ( Mitchell v. Dunmore Realty Co., 135 App. Div. 583.) Yet there is no precedent which holds that when the motion is made at the trial itself the ruling of the trial court can be reviewed directly and before the termination of the trial and entry of judgment. We think that it is not the intention of section 547 of the Code of Civil Procedure to sanction the practice for which the appellants now contend. However labor saving such practice might prove in this particular case, it would lead to confusion and complexity in the general run of cases. Furthermore, the matter is regulated by section 996 of the Code of Civil Procedure which limits the review of exceptions taken upon a trial to an appeal from the judgment. In our opinion the ruling made on this trial is not to be deemed to be exempt from the regulation of section 996, as aforesaid. Therefore, we are of opinion that this appeal should be dismissed without prejudice to a review of the order in question on an appeal from whatever judgment may be entered on the termination of the trial.
The appeal should be dismissed, with ten dollars costs and disbursements.
JENKS, P.J., THOMAS, RICH and PUTNAM, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.