Opinion
June 21, 1918.
Joseph Fried, for the appellants.
Eli J. Blair, for the respondent.
If the judgment herein is not appealable because not rendered at a trial, according to section 1346 of the Code, nevertheless the orders upon which this judgment rests are appealable. The appeal was taken within the statutory time after the entry of such orders, and the notice of appeal is broad enough so that we can consider this appeal as being taken from such orders; and on the reversal of the orders the judgment necessarily falls. The failure of the plaintiffs to comply with the conditions of the order of July twenty-seventh was technical rather than substantial. One condition was that they should "file a note of issue for the September Trial Term." As matter of fact the plaintiffs filed a note of issue for the September Special Term; but as the two terms were held at the same time, before the same justice, this was an unimportant variation, and the case could have been treated as though it were on the Trial Term calendar. The stipulation was not in accordance with the condition of the order. The condition of the order was that plaintiffs "stipulate to try the same when reached." The written stipulation tendered on the twenty-seventh day of July was that the case be set down for the September term, but the order of July twenty-second prescribed no time within which such stipulation should be made; and as the plaintiffs were ready to try the case when reached, the condition was substantially complied with. The defendant did not accept the order of July twenty-seventh, but appealed from the same, and the appeal was pending at the very time when the motion to dismiss the complaint was made. It is an inconsistent position to appeal from the order and at the same time attempt to take advantage of it. These considerations, added to the fact that in view of the short statute of limitations contained in the policy upon which the action was brought another action cannot be maintained, lead to the conclusion that the judgment and orders should be reversed; but, because plaintiffs failed to comply accurately with the condition contained in the order of July twenty-seventh, the reversal is without costs either in this court or the court below; and the motion to dismiss the complaint is denied, without costs.
JENKS, P.J., THOMAS, PUTNAM, BLACKMAR and KELLY, JJ., concurred.
Judgment and orders reversed, and motion to dismiss complaint denied, without costs either in this court or the court below.