Flatow v. Van Bremsen

¶1The action was commenced in the city court of New York to recover damages for alleged slander. The defendant demurred to the complaint. The demurrer was overruled at the special term, and an interlocutory judgment entered accordingly. Prom this judgment an appeal was taken by the defendant to the general term of the city court, where it was reversed, and an interlocutory judgment ordered that the complaint be dismissed, with costs to defendant, unless within six days from the service of a copy of the interlocutory judgment plaintiff should pay to the defendant the costs of the demurrer and of the appeal, and amend his complaint. On this decision of the general term an interlocutory judgment, in proper form, was entered. The order of the general term also provided that, in case the plaintiff should not amend his complaint and pay the costs as provided, final judgment should be entered against him dismissing the complaint. Thereafter, on proof of plaintiff’s failure to avail himself of the leave granted by the interlocutory judgment, the defendant applied to the special term of the city court for an order for judgment, which was granted, and final judgment was then entered in pursuance of said order of the special term of the said court. This was an improper judgment. The final judgment which the plaintiff was entitled to, and which he should have entered, was the final judgment of the general term. The judgment appealed from thus entered upon the order of the special term is not appealable directly to this court. It is hardly necessary to say that no appeal from the order of the general term to this court,' under section 3191 of the Code of Civil Procedure, is authorized. It was plainly the duty of the appellant- when he sought to appeal to this court after he found that an incorrect final judgment had been entered, in pursuance of the decision of the general term, to apply to the-court and have a correct final judgment entered, from which he could appeal. His right of appeal, however,. is not cut off by his failure to do so. He can apply to have a correct judgment entered, and, when that has been done, he can appeal from it to this court. His present appeal, however, must be dismissed, with $10 costs.