Opinion
November 27, 1908.
George Wallace [ Frederick H. Cox with him on the brief], for the appellant.
Stephen H. Voris [ Charles R. Haviland with him on the brief], for the respondents.
This action, brought in the County Court for a partition of certain parcels of realty, proceeded to an interlocutory judgment. Thereupon Cox, one of the defendants in that court, upon his affidavit and upon the testimony and all the papers in the action, moved for an order to vacate and to set aside the said interlocutory judgment, to allow and to direct a new trial of the issues raised by his answer and the reply thereto, and to grant to him such other and further order and relief as might be just and equitable. This appeal is by Cox from the order denying his motion to vacate and set aside so much of the interlocutory judgment as relates to Parcel No. 2 described therein, and to allow a new trial of the issues raised by his answer.
It appears that the plaintiff made the said Cox and Lawrence defendants because they asserted "some claim" under a certain contract executed by the original owner of the property, "as to the merits of which claim" the plaintiff pleads ignorance. Of these two defendants Cox alone appeared and answered that a contract was extant made by Fox to convey to him and Lawrence one of the parcels of the land sought to be partitioned in this action, and prayed for a specific performance thereof as to him alone. The issue thus raised was tried by the court, but the said interlocutory judgment denied any relief to Cox save repayment of certain moneys paid by him on account of the contract.
We think that we cannot entertain this appeal. An appeal from an interlocutory judgment is only permissible when that judgment is rendered in the Supreme Court. It is only an appeal from a final judgment of the County Court that is provided for in the Code of Civil Procedure. ( Russ v. Maxwell, 94 App. Div. 107.) We think that the proper practice is either appeal from the final judgment or a motion made pursuant to the provisions of section 1001 of the Code of Civil Procedure. (See 3 Nichols N.Y. Prac. 2727.) Upon such a motion, however, only questions of law arising on rulings duly excepted to are presented for review. ( Raynor v. Raynor, 94 N.Y. 248; Dorchester v. Dorchester, 121 id. 156.) In the case of Russ v. Maxwell ( supra) the appeal had been taken from an interlocutory judgment, but the parties stipulated that the appeal in that case might be treated as a motion for a new trial made upon exceptions, and the court, therefore, considered the appeal upon the merits. There is no such stipulation here, and of course the parties cannot be compelled to make one.
The appeal must be dismissed, but without costs.
WOODWARD, HOOKER, GAYNOR and MILLER, JJ., concurred.
Appeal dismissed, without costs.