Noble v. . Kendall

122 N.E. 223, 225 N.Y. 673, 1919 N.Y. LEXIS 1204

• Court: New York Court of Appeals
• Decided: January 21, 1919
• Status: Published

Opinion

Per Curiam.

The motion to dismiss the appeal must be granted. The Appellate Division in reversing the action of the Special Term made two interlocutory orders, one sustaining defendant’s demurrer to the complaint, and the other granting defendant’s motion for judgment on the pleadings, and in each .case granted leave to the plaintiff to amend her complaint. The plaintiff having declined to avail herself of this privilege, final judgment was thereafter entered in the Supreme Court dismissing the complaint, with costs.

Under these circumstances the plaintiff could not appeal from the final judgment entered against her directly to this court.

The orders of the Appellate Division were interlocutory and, therefore, no appeal could be taken therefrom to this court without permission, which was not obtained. (Code Civ. Pro. § 190.) •

The final judgment entered after the refusal of plaintiff to amend was not so entered after an affirmance by the Appellate Division of the orders of the Special Term overruling the demurrer and denying judgment on the pleadings', and, therefore, section 1336 of the Code permitting an appeal directly to this court does not apply. (Will v. Barnwell, 197 N. Y. 298; Stemmier v. Alsdorf, 224 N. Y. 426.)

The case of Rose v. Bristol (222 N. Y. 11), cited by the appellant as justification for her course, is not applicable. As was pointed out in that case, the judgment rendered by the Appellate Division was a final one dismissing the complaint and, therefore, the appeal could be and properly should have been taken directly to this court.

The motion should be granted and appeal dismissed, with costs and ten dollars costs of motion.

Hiscock, Ch.. J., Collin, Cuddeback, Cardozo, Pound, Crane and Andrews, JJ.; concur.

Appeal dismissed.