Geneva-Seneca Electric Company, Appellant, v. Economic Power and Construction Company and the City of Geneva, Respondents

Geneva-Seneca Electric Company, Appellant, v. Economic Power and Construction Company and the City of Geneva, Respondents. Fourth Department, March 29, 1910. Appeal — practice — appeal to Court of Appeals after affirmance of demurrer by Appellate Division. Where the Appellate Division has affirmed a judgment sustaining a demurrer to a complaint upon the ground that it does' not state facts constituting a cause of action, the plaintiff may appeal directly to the Court of Appeals from the final judgment of the Special Term entered on the affirmance by the Appellate , Division. Upon such appeal the decision of the Appellate Division may be reviewed, providing notice of an intention to do so be given in the notice of appeal. It seems, that it is only where the Appellate Division reverses such interlocutory judgment that the respondent must, after entry of judgment in the court below, appeal to the Appellate Division, take an affirmance and then appeal to . the Court of Appeals. t Motion for leave to appeal to the Court of Appeals from a judgment of the Appellate Division, entered on the 12th- day. of January, 1910, which affirmed a judgment of the' Special Term. (See 136 App. Div. 219.). Earning G; Hoskins, for the motion.- Rissell <£> Riley, opposed. [MAJORITY — McLennan, P. J.:] McLennan, P. J.: The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained. From the interlocutory judgment sustaining the demurrer the plaintiff appealed to this court where the said' judgment was affirmed on January 12, 1910. The appellant now asks leave to appeal to the Court of Appeals from such judgment of affirmance. We cannot agree with the appellant in saying that an appeal may not be taken direét to the Court of Appeals from the judgment of the Special Term sustaining the demurrer and dismissing the' complaint which was entered subsequent to and in pursuance of the judgment-of affirmance of this court. The matter is provided for in section 1336 of the Code of Civil Procedure. . The case of Abbey v. Wheeler (170 N. Y. 122) referred to by the appellant, simply holds that where the Appellate Division ■ reverses such an interlocutory judgment the respondent must, after entry of judgment in the court below, appeal to the Appellate Division! take an affirmance and then appeal to the Court of Appeals. But it is distinctly stated in Dieterich v. Fargo (194 N. Y. 359) at the bottom of page 362, and again.in McNamara v. Goldan (Id. 315) at page 319, that where the Appellate Division affirms such an interlocutory judgment the appellant may appeal direct to the Court of Appeals from the final judgment-entered upon such affirmance in the court below. Upon such an appeal the decision of the Appellate Division may be reviewed, provided notice of intention to review it is given in the notice of appeal. For this reason the motion should be denied, with ten dollars costs. All concurred. Motion for leave to appéal to Court of - Appeals denied With ten dollars costs.