Opinion
Argued December 4, 1883
Decided December 14, 1883
Geo. F. Comstock for appellant.
D. Pratt for respondents.
The learned counsel for the defendants makes a preliminary objection that the appeal to this court is unauthorized, and we are of that opinion.
The judgment entered at the Special Term was not a final, but an interlocutory judgment. It appointed a referee who was to take an account of rents and profits, and improvements upon land, and ascertain the present value of dower, and upon payment by the plaintiff of a certain sum to be ascertained by the referee in the mode specified in the judgment, he, the referee, was to admeasure her dower; and he was to report the evidence taken by him with his findings thereon to the court; and all other questions were reserved until the coming in of such report, and the final hearing thereon.
There is but one case in which this court has jurisdiction to entertain appeals from any but final judgments, and that is provided for in subdivision 4 of section 190 of the Code. It is the general rule also that appeals from judgments in the Supreme Court, and the superior city courts to the general terms are confined to final judgments (§ 1346). But special provision is made by section 1349 for appeals to the General Terms from interlocutory judgments. There is, however, no provision anywhere authorizing such appeals to this court.
If upon the appeal from an interlocutory judgment to the General Term the judgment is affirmed, then the parties must go back to the Special Term and complete the further proceedings, and then final judgment may be entered upon the whole case. From the final judgment the party aggrieved thereby may, under section 1336, appeal directly to the Court of Appeals, in which case the appeal will bring up for review only the determination of the General Term affirming the interlocutory judgment; or he may, under section 1350, appeal to the General Term, which appeal will bring up for review only the proceedings to take the final judgment; and in case the General Term affirms the judgment, he may appeal to this court, and here present for review all the questions of law involved in the whole case, and raised by exceptions taken at the proper time.
In case the General Term upon an appeal from an interlocutory judgment, as upon appeal from a final judgment, grants a new trial, then under sections 190 and 191, an appeal may be taken to this court.
But another course of practice is open to a party aggrieved by an interlocutory judgment. He may, after the entry of the judgment, under section 1001, move at the General Term for a new trial upon one or more exceptions contained in a case to be settled as provided by section 997; and in case the motion is granted or refused, an appeal may be taken to this court under section 190. But if no appeal is taken to this court from an order denying a new trial, then the practice must again conform to sections 1336 and 1350.
The learned counsel for the appellant claims that there is no practical difference between an appeal from an interlocutory judgment and a motion for a new trial at the General Term, as there is always in effect a motion for a new trial upon the argument of such an appeal. The difference between the two may not be very great, and in some cases may be wholly unimportant. But the Code, in all its provisions, recognizes a difference between appeals and motions for new trials (Code, §§ 190, 191, 999, 1001, 1002, 1003, 1004, 1336, 1350); and we in a very pointed manner recognized the difference in the case of Walker v. Spencer ( 86 N.Y. 162). In that case there was an interlocutory judgment with which both parties were dissatisfied. The plaintiff appealed from the interlocutory judgment to the General Term, and the defendant moved at the General Term, under section 1001, for a new trial. The General Term affirmed the judgment and denied the motion for a new trial, and then both parties appealed to this court; and here we dismissed the appeal of the plaintiff on the ground that an appeal to this court from an interlocutory judgment was unauthorized; and we held the defendant's appeal proper and affirmed the order denying the new trial. In the case of Bennett v. Austin ( 81 N.Y. 308) the appeal to this court was from an order of the General Term of the Supreme Court denying a motion for a new trial made under section 268 of the Code of Procedure which was substantially like section 1001 of the Code of Civil Procedure, and hence we properly entertained the appeal. But there is this difference between an appeal from an interlocutory judgment and a motion for a new trial under section 1001. The motion must be based upon one or more exceptions, and hence can present only questions of law. The appeal brings to the General Term for review both questions of law and fact. Hence the appeal always brings up the same questions which can be presented upon the motion, but the motion does not always present the same questions which can be argued upon the appeal.
We are not concerned with the wisdom or utility of the provisions which we have referred to. They are plain and must control. ( Barker v. Cocks, 50 N.Y. 689; Catlin v. Grissler, 57 id. 363; Mundorff v. Mundorff, 59 id. 635; Elwell v. Johnson, 74 id. 80; Chesterman v. Eyland, 74 id. 452; Cambridge Valley Nat. Bank v. Lynch, 76 id. 514, 516; Victory v. Blood, 93 id. 650.)
The appeal should be dismissed, with costs.
All concur.
Appeal dismissed.