Water Right & Electrical Co. v. Rockland Light & Power Co.

245 A.D. 739

Opinion

Appeal by the defendant from a judgment of the Supreme Court, entered after trial of the special issues raised by the second affirmative defense contained in the defendant’s answers, in favor of the plaintiffs and against the defendant, adjudging that the second affirmative defense be dismissed on the merits, dismissed, without costs. The purported judgment must be regarded as a nullity. (Valentine v. Perlman, 216 App. Div. 548; Lowe v. Lowe, 265 N. Y. 197, 202.) The case is remitted for trial of the remaining issues presented by the pleadings. While it may be that the second affirmative defense, as pleaded, was established by the proof and is a complete defense, the record is not here in such shape that this action may be finally determined. A consideration of the merits may be had only on the entry of a final judgment which adjudicates all the issues raised by the pleadings. Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.