Charles R. Johnson, Appellant, v. The Union Switch and Signal Company, Respondent

Charles R. Johnson, Appellant, v. The Union Switch and Signal Company, Respondent. (Submitted January 12, 1891; decided January 20, 1891.) A judgment of General Term, affirming an order of Special Term and an interlocutory j udgment sustaining a demurrer to the complaint, with leave to plaintifE to amend the complaint, is not a final, but an interlocutory judgment, and is so not appealable to this court, save upon certificate of the General Term, and then the appeal must he taken within sixty days after service upon the appellant of a copy of the judgment and notice of entry thereof. (Code Civ. Pro. subd. 4, § 190.) Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made • April 7, 1890, which affirmed an order and interlocutory judgment of the Special Term, sustaining a demurrer to the complaint. [MAJORITY — Gray, J.,] The following is the opinion in full: “ This appeal is from a General Term judgment affirming an order and an interlocutory judgment of the Special Term which sustained the defendant’s demurrer to the complaint, with leave to amend within a certain time on payment of costs. The ap23eal to this court was taken more than sixty days after the service upon the ajjpellant of a copy of the judgment at General Term and notice of entry thereof, and this motion is to dismiss the appeal for not having been taken within the time prescribed by law. The appellant argues that the judgment is a final one and that he, therefore, has noticed his appeal in season. But he is in error; for the judgment was not the final judgment, which we are authorized to review upon an appeal. That must be a final determination of the right of the parties. The judgment which was affirmed by the General Term was interlocutory and in no respects final. It was entered before the expiration of the time allowed by the order for the service of an amended complaint and, by its very terms, gave leave to the defendant to enter final judgment dismissing the complaint. The judgment of the General Term, from which the appeal here was taken, merely adjudged that the order and interlocutory judgment sustaining the demurrer should be affirmed. That is not a judgment which finally determined the rights of the parties; for no judgment could accomplish that which did not dismiss the complaint. That was something which remained to be done before we could review the orders of the court in the absence of the certificate of the General Term provided for by the Code (§ 190, subd. 4). The General Term judgment did not dismiss the complaint and was of no more importance for appeal purposes than the order. To complete the proceedings there was wanting the judgment adjudging upon the whole case. George W. Miller for appellant. Carter, Hughes & Cravath for respondent. “ This case seems to be quite within the principle laid down by the court in Elwell v. Johnson (74 N. Y. 80). “ The appeal should be dismissed, with costs of appeal and ten dollars costs of motion.” Gray, J., reads for dismissal of appeal. All concur. Appeal dismissed.