Kirsch v. Herculean Products Co.

205 A.D. 530, 199 N.Y.S. 417, 1923 N.Y. App. Div. LEXIS 5073

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1923
• Status: Published

Opinion

Per Curiam:

The appeal herein is from an order granting plaintiff’s motion to strike out the answer of the defendant and ordering judgment as upon a default in favor of the plaintiff, and from the judgment entered thereon. The order appealed from was made upon plaintiff’s motion, apparently under section 405 of the Civil Practice Act, for failure of defendant’s president to appear for further examination pursuant to an adjournment of his examination before trial taken under an order which directed the production of books, papers and records of the defendant.

The judgment entered pursuant to such order as upon a default is not appealable. An appeal from the order, however, is expressly authorized by section 609, subdivision 5, of the Civil Practice Act, as the order “ in effect * * * determines the action and prevents a judgment from which an appeal might be taken.” (Banes v. Rainey, 130 App. Div. 465.) Since only the order is appealable, it may be moved for argument on the non-enumerated calendar.

The motion to dismiss the appeal should be denied, without costs, with leave to renew unless the appeal be brought on for argument promptly in accordance with the rules relating to appeals from orders.

It does not appear that any undertaking to stay execution pending appeal has been given; and since no appeal from the judgment can be perfected, and there is nothing to be stayed under the order, the motion for a stay should be denied, with ten dollars costs.

Present — Clarke, P. J., Dowling, Smith, Merrell and McAvoy, JJ,

Motion to dismiss appeal denied, without costs, with leave to renew as stated in order. Motion for stay denied, with ten dollars costs.