49 N.Y.S. 41 | N.Y. App. Div. | 1897
Green, J. :
Motion is made to strike out from the notice of appeal the statement that it is the appellant’s intention to bring up for review the order denying a motion for a new trial, which order is contained in the printed case. The time within which an appeal may be taken from such an order had expired when the notice of the appeal from the final judgment was served.
Two questions are presented: First, whether the statement in the notice is equivalent to an explicit or direct notice of appeal, within section 1300, Code Civil Procedure. Second, whether an order denying a motion for new trial, made before entry of judgment, may be reviewed as an intermediate order, which “ necessarily affects the final judgment,” notwithstanding the expiration of the time within which a separate appeal therefrom might have been taken. (§ 1316.)
The first question must be answered in the affirmative. (See Pfeffer v. Buffalo Railway Co., 4 Misc. Rep. 465, and authorities referred to below.)
So that, if the time limited for appeals from orders of that character had not expired, the notice of intention would stand good as a notice “ to the effect ” that the appellant appeals from the order, and
The former Code of Procedure provided that “ upon an appeal from a judgment the court may review any intermediate order, involving the merits and necessarily affecting the judgment.” (§ 329.)
Section 1316 of the present Code provides that “ an appeal, taken from a final judgment, brings up for review an interlocutory judgment or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment, and which has not already been reviewed, upon a separate appeal therefrom, by the court, or the term of the court, to which the appeal from the final judgment is taken. The right to review ah interlocutory judgment, or an intermediate order, as prescribed in this section, is not affected by the expiration of the time within which a separate appeal therefrom might have been taken.” Section 1301 provides that “ where the appeal is from a final judgment, or from a final order in a s]iecial proceeding, and the appellant intends to bring up for review thereupon an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to he reviewed.” Sections 1347 and 1351 provide, among other things, for appeals from orders granting or refusing a new trial.
Under the former Code of Procedure there was no express requirement that an intermediate order of the character described should be specified in the notice of appeal, though it may, perhaps, be implied from the language of section 330. Yet it was said that if the order is one that involves the merits, and necessarily affects the judgment, it is reviewable on appeal therefrom, and it is immaterial that it is not mentioned in the notice of appeal. (Selden Case, infra.)
In such a case, it would seem, the right of review would not be affected by the circumstance that the time for appeal from the order had expired ; for, if it both involved the merits and necessarily affected the judgment appealed from, it must require or deserve consideration in determining the matters in controversy.
Section 1316 of the new Code is based on section 329 of the
The 1st clause of section 1316 discriminates between those intermediate orders which do, and those which do not, necessarily affect the final judgment. Section 1301 provides for all intermediate orders without regard to their character or legal effect; while section 1316 has reference only to those which necessarily affect the judgment; and the words, “ as prescribed in this section,” refer only to orders of that character. In respect to intermediate orders, which do not necessarily affect the judgment, there is no provision that the right of review shall not be impaired by the expiration of time. In view of the fact that, by section 1301, it is contemplated that an appeal from a final judgment shall bring up for review any intermediate order specified in the notice, and, irrespective of its character or its necessary effect upon the judgment, we are. unable to perceive the purpose of the words in the 1st clause of section 1316 — “ and necessarily affects the final judgment ” — unless they were intended to mark a distinction between the two classes of orders in respect to the expiration of the time to appeal, as provided by the last clause, or unless they were intended to restrict the right of review to orders that necessarily affect the judgment, and thus to limit the effect and operation of section 1301 to orders of that character. But the latter construction would be unwarranted. In the note to section 1316 it is stated that “ this section will relieve a party from the real or supposed necessity of taking such an appeal, by providing that the interlocutory judgment may always be reviewed upon appeal from the final judgment. Under the present system the unsuccessful party is, or generally supposes himself to be, compelled to appeal, under the penalty of being conclusively bound by the interlocutory judgment.” Whatever consideration or effect may be given to this statement, it cannot control the plain provision of the section. An interlocutory judgment in most, if not in all, cases may be said to affect the judgment more or less, or necessarily involve the merits of the controversy, or the matters in litigation. But the same cannot be said of ihany intermediate orders.
In Selden v. Delaware & Hudson Canal Co. (29 N. Y. 634), after entry of judgment, defendant made two successive motions to set aside the verdict on the grounds of surprise, that the trial was irregular, the misconduct of a juror, and that the verdict, was against the weight of evidence. These motions were denied, and the judgment and orders were affirmed. In the notice of appeal from the judgment of the General Term these orders were not mentioned; and the court said, “ It is not material that they are not mentioned in the notice of appeal. If they were reviewable here under any circumstances, they would be so on the appeal from the judgment. They are not, however, intermediate orders involving the merits and necesssarily affecting the judgment, within subdivision two of the eleventh section of the Code of" Procedure. They are not intermediate orders in any sense, but entirely outside of the judgment.”
In Thurber v. Harlem Bridge, etc., Co. (60 N. Y. 326) it was held that an order denying a motion for a new trial made upon the minutes is not brought before the General Term, and is not reviewable on appeal from a judgment, as an intermediate order involving the merits and necessarily affecting the judgment (Code of Proc. § 329); a review of the facts can only be there heard on appeal from the order. In that case the plaintiff had a verdict, and defendant appealed from the judgment and obtained a reversal and an order for a new trial, but the Court of Appeals reversed the order granting a new trial and affirmed the judgment entered on the verdict. The court held that the order denying defendant’s motion for a new trial, made at Special Term, was not before the General Term, nor reviewable by the Court of Appeals, as an intermediate order involving the merits and necessarily affecting the judgment within section 11, subdivision 1.
We understand these decisions as ruling that an order denying a motion for a new trial cannot be said to be an intermediate order involving the merits and necessarily affecting the judgment, and, therefore, reviewable as such, even though it were specified in the notice of appeal.
In Brumfield v. Hill (28 N. Y. St. Repr. 362) it was stated in the notice of appeal that the appellant intended to bring up for review the order denying motion for a new trial, and it was held that an objection to the sufficiency of the notice came too late when raised for the first time on the hearing of the appeal. And, it seems, the court was inclined to hold that it was sufficient as a notice of appeal and should be considered, as the notice specified the order and the appeal book contained it. But it does not appear that the time prescribed for an appeal from the order had expired.
In Ulster Co. Sav. Inst. v. Fourth Nat. Bank (28 N. Y. St. Repr. 24) it was decided that an order denying leave to serve a supplemental answer showing that the cause had been removed to the United States Circuit Court could not be reviewed under section 1316, the time to appeal therefrom having expired. It was said that such an order did not necessarily affect the judgment, and that this privilege of reviewing, on appeal from final judgment, an intermediate order is not to be extended beyond the strict language of the provision.
In Hymes v. Van Cleef (15 N. Y. Supp. 343; 39 N. Y. St. Repr. 811) the order was made subsequent to the entry of judgment, and in the notice of appeal the appellant stated that he intended to bring up for review the order denying the motion for a new trial. The respondent moved, on notice, to have that portion of the notice stricken out, and the motion was argued with the appeal. The court observed that it was not an intermediate order within the meaning of section 1301, as it was not made between'the commencement of the action and the entry of judgment. (Baylies
In Bloom v. Nat. United Benefit Savings Co. (81 Hun, 120; affd., 152 N. Y. 114, 121) the trial took place at Special Term, and, after the evidence taken had been closed, the plaintiff was permitted to introduce further proof, and the action was then referred to a referee to take such proof and to determine the issues upon the whole evidence in the case. After the time to appeal from such order had expired defendant appealed from the final judgment, and it was held that the order could not be reviewed under section 1316, as it did not necessarily affect the judgment, although the court had no power to make it without consent of both parties. The defendant objected to the referee proceeding with the trial, but it was held that, by participating in the trial and failing to appeal from the order within the time limited, that objection could not be raised on the appeal.
In Fox v. Matthiessen (84 Hun, 396) the order denying the motion for a new trial made upon the minutes was entered before entry of judgment, and this form of notice was held sufficient. (Citing Hymes v. Van Cleef, 15 N. Y. Supp. 343; Pfeffer v. Buffalo R. Co., 4 Misc. Rep. 465.) It was also held that an order denying a motion to set aside a verdict on the ground of surprise, irregularity in the trial and misconduct of a juror is not an intermediate order necessarily affecting the judgment (citing Selden v. Delaware & H. Canal Co., 29 N. Y. 635), even though it was entered before entry of judgment. The court conceded that the order was an intermediate one, within the letter of the definition, but that was so simply because the defendant delayed entering judgment long after he was entitled to do so, and not from any connection existing in law or in fact between the order and the
When a motion for a new trial is denied, the judgment, if entered, remains unaffected by the order, and, if not entered, the legal right to do so remains unimpaired. And, unless the appellate court reverses the judgment, it will still remain unaffected. If a reversal is ordered, the judgment will then be affected'—not by the order of the court below denying the motion-—but by the order of the appellate court granting it. Consequently, the judgment and the proceedings upon which it is founded come before the appellate court wholly unaffected by the order of the court below. Accurately speaking, an order granted before entry of judgment is an “ intermediate ” order, while one granted thereafter is not. But no sensible or substantial distinction exists between the two cases, for, if the judgment is necessarily affected in the one case, it must be so in the other, and vice versa.
An order denying a new trial, though made before judgment, is not an intermediate order within the true meaning of sections 1301, 1316 of the Code, and reviewable as such. To hold otherwise would be to discriminate between orders made before and those made after judgment, the latter not being intermediate orders in any sense.
There is no necessary connection between such an order and the final judgment. It is not involved in the judgment, nor is the latter in any way founded upon or concerned with it; nor was it granted in any proceeding leading up to the judgment, either directly or collaterally; in short, it is entirely outside of the judgment.
If any intermediate order granted the respondent or refused the appellant necessarily affects the judgment, in the opinion of the appellate court, a reversal of the judgment may be required ; but there is a class of intermediate orders which do not have that legal efficiency, and a reversal for error would not be warranted in respect to them.
The question whether any particular order necessarily affects the judgment will always be an open one.
The conclusion here is that the order in question is not an intermediate order, nor does it necessarily affect the judgment, within the meaning of the Code. The error, if any, in refusing to set aside the verdict and grant a new trial was not an error in any of the proceedings leading up to the judgment, within the purview of the provisions of the Code.
The appeal, therefore, is only from the judgment, and as the trial was by jury, the appeal from the judgment brings up questions of law only. If there is any evidence for the jury, that evidence is not re viewable, but if there is no evidence, the question of law would be presented on motion for nonsuit, which was made in this case at the close of the plaintiff’s evidence and renewed at the close of the entire case.
This action was brought upon a written contract made between the plaintiff and defendant. It appears from that instrument that the plaintiff was the owner of a parcel of land in the State of Minnesota, and a contract was made between him and the defendant, whereby the plaintiff agreed to sell to the defendant, and the defendant agreed to purchase the same and pay to the plaintiff, for his interest therein, “ the sum of $4,800 and other valuable con
At the time of the making of this written instrument, the par
Our conclusion is that, upon this branch of the case, the learned judge presiding at the trial correctly interpreted this contract.
It is argued on behalf of the defendant that, as there was no demand made to the defendant to produce and deliver the search, therefore, this action cannot be maintained. Ho demand was necessary on the part of this plaintiff to secure that which the defendant had contracted to perform upon his part. The defendant was the actor in performing that part of the contract, and he cannot evade the consequences of such non-performance on the plea that the other party to the contract should demand the fulfillment of what was rendered obligatory and necessary on the part of the defendant by the terms of the contract.
The defendant further claims that this plaintiff ought not now to be allowed to enforce his claim because he did not make a demand upon defendant for the payment of this $1,300 until nearly five years from the time of the making of the contract had expired. The plaintiff, preceding the commencement of this action, did duly demand from defendant the jDayment of the $1,300 ; the defendant still refused to pay the same; thereupon this action was brought. The defendant surely ought not to complain that plaintiff gave him five years in which to fulfill the condition of the contract which he had agreed to fulfill within three months. Hothing has been shown by the defendant which would warrant the court in holding that the plaintiff has done any act estopping him from enforcing his contract. The plaintiff is suing at law and not in equity, for relief; ■ and there is no statute or loches brought to the attention of this court showing that plaintiff is debarred from the enforcement of this contract.
The motion of plaintiff to strike from the notice of appeal the statement that it is the appellant’s intention to bring up for review
The judgment should be affirmed, with costs.
All concurred.
Motion of plaintiff to strike from the notice of appeal the statement that it is the appellant’s intention to bring up for review the order denying the motion for a new trial is granted, with ten dollars costs. Judgment affirmed, with costs.
Sic.