Opinion
December 6, 1907.
James C. Lenney, for the appellant.
Theodore S. Rumney, Jr., for the respondent.
The plaintiff brought action upon contract against the defendant, a nonresident, and obtained a warrant of attachment and levied upon certain moneys in bank belonging to defendant.
The defendant desired a release of the moneys from the levy of the attachment and filed an undertaking releasing them.
Instead of obtaining an order releasing the levy on such undertaking, her attorneys presented to plaintiff's attorneys a stipulation for "discharging the attachment" according to an annexed order, which order not only provided for a discharge of the levy but vacated the attachment itself. On the signing of the stipulation by the attorneys for both parties, the defendant entered the order and shortly thereafter discovered her own mistake in providing in the order that the attachment be vacated, whereas she desired simply the discharge of the levy thereunder, and made a motion to be relieved from that part of the order vacating the attachment, which motion was granted and the attachment thus restored with the levy discharged. Thereupon the defendant moved that the plaintiff be compelled to give additional security on his attachment, and that motion was granted, requiring plaintiff to give an additional undertaking of $3,000. This undertaking plaintiff failed to give, whereupon defendant moved under the provisions of section 3277 of the Code of Civil Procedure for judgment dismissing plaintiff's complaint, with costs, which motion was granted and such judgment entered.
By his notice of appeal the plaintiff states that he appeals from this judgment giving its date and place of entry, and states that on such appeal he will bring up for review the various orders above enumerated.
Section 3277 of the Code specifically prescribes that on failure to comply with the order for an additional undertaking on the part of plaintiff, the defendant may apply for judgment as upon a motion.
We are of the opinion that a judgment so entered is not appealable to this court, and that it not being appealable this court has no power to review the various orders mentioned in plaintiff's notice of appeal.
Section 1346 of the Code prescribes from what judgments an appeal may be taken to this court, and they are judgments rendered upon a trial by a referee or by the court without a jury, and those rendered upon the verdict of a jury.
The judgment against plaintiff was not rendered upon a trial and does not come within the provision permitting an appeal. It is more analogous to a judgment by default, in which the remedy is to move to open the default and appeal from the order denying it. ( Hawkins v. Smith, 91 Hun, 299.)
It is true that section 1316 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; but it is manifest that the appeal referred to must be one taken from a judgment that is appealable. The right of appeal is a statutory one and can only be taken from such judgments as the statute authorizes. ( Garczynski v. Russell, 75 Hun, 512.)
Section 1209, which provides that a final judgment dismissing the complaint either before or after a trial, does not prevent a new action for the same cause, unless it so expressly declares or it appears by the judgment roll that it is rendered upon the merits, does not help the situation. The words "either before or after a trial" refer to the dismissing of a complaint and the rendering of judgment thereon in an action which is brought on for trial either upon issues of law or of fact, and either before evidence is taken or after it shall have been taken. Such a judgment would be a final judgment and one appealable under the provisions of section 1346.
Nor can plaintiff's notice of appeal be construed as a direct appeal from the various orders mentioned in it. There is no statement that the various orders are appealed from, and they are asked to be reviewed only by virtue of the appeal from the judgment. This appeal being unauthorized the review of the orders must fall with it.
If we felt authorized to do so we should be inclined to grant the plaintiff some relief. The judgment entered, however, is not a bar to another action which plaintiff can bring if he sees fit.
It is urged that because defendant's answer set up a counterclaim the dismissal of plaintiff's complaint is in violation of his property rights under the 14th amendment of the Federal Constitution.
No affirmative relief was obtained or asked for by the defendant upon her counterclaim when she applied for judgment of dismissal of plaintiff's complaint. The situation is unlike that in Sibley v. Sibley ( 76 App. Div. 132) and Hovey v. Elliott ( 167 U.S. 409), upon which plaintiff relies. In those cases a party's pleading was stricken out and the action continued and affirmative relief given against him.
The appeal must be dismissed, but, under the circumstances, without costs.
PATTERSON, P.J., McLAUGHLIN, LAUGHLIN and LAMBERT, JJ., concurred.
Appeal dismissed, without costs. Settle order on notice.