Arthur v. . Griswold

60 N.Y. 143, 1875 N.Y. LEXIS 154

Opinion

The order of the General Term, reversing the order of the Special Term which vacated the order reviving this action against the representatives of John A. Griswold, deceased, did not, in our judgment, affect any substantial right of the appellants. If the cause of action did not survive against them, that objection will still be available on the trial. If the cause of action did survive, but a joint judgment cannot be rendered against the appellants and the surviving defendants, a separate judgment may be rendered against either, or the court may direct that the plaintiff proceed separately against each class of defendants; and that is suggested, in the opinion of the court below, as the appropriate mode of proceeding, citing Union Bank v. Mott. (27 N.Y., 633, 637.) If supplemental pleadings are necessary the court below can allow them. The right of the plaintiff to proceed jointly against all the defendants now upon the record is not established by the order appealed from, but is still subject to adjudication in the court below. We have frequently held that orders which affect mere modes of procedure do not deprive the party appealing of any substantial rights, and are not appealable to this court. (Van Slyke v. Hyatt,46 N Y, 259, 263, 264.)

The appeal must be dismissed, with costs.

All concur.

Appeal dismissed.