It must be borne in mind that the right to appeal as statutory. (Carczynski v. Russell, 75 Hun, 512.) I am unable to find in the Code of Civil Procedure any provision authorizing an appeal from this judgment! The judgment was duly "entered pursuant to an order made, in accordance with the provisions of section 547 of the-Code of Civil Procedure which authorizes an application for judgment on the pleadings, .not on the trial of issues of law'or of issues of fact, ‘but by motion at Special Term, and the hearing is not a trial either of issues of law or of fact within the contemplation of the provisions of the Code of Civil Procedure, and requires no decision containing findings of fact and conclusions of law as a basis for the judgment, but merely an order which is itself appeal-able, and until reversed on appeal is authority for the judgment, and, .therefore, the propriety of the order must, I think, be reviewed on a direct appeal and cannot be reviewed as an intermediate order on an appeal from the judgment. (Code Civ. Proc. §§-547, 1316, 1346, 1347, subd. 5; James v. Shea, 28 Hun, 74; Jones v. Sabin, 122 App. Div. 666; Banes v. Rainey, 130 id. 465.) The provisions of the Code of Civil Procedure will not admit of a different construction upon the theory that it is necessary to protect the rights of a party situate as was the appellant. The original- order at Special Term, to be sure, was satisfactory to.him. It was made on an application of the defendant realty company for judgment *588on the pleadings pursuant to the provisions of section 547 of the Code of Civil ■ Procedure. The court granted the judgment, but gave leave to the plaintiff to serve an amended complaint. The defendant company then appealed from so much of the order as gave plaintiff leave to serve the amended pleading, and that part of the’order was reversed, which left -the order as one for judgment absolute, dismissing the complaint. The time of the defendant to appeal from the order of the- Special Term, I presume, expired before the entry of the order of this court modifying- it, but for the purpose of authorizing an appeal by the plaintiff that order should be deemed entered as of the time of the entry and service of notice of entry of the modification of the order by this court'; and, therefore, when the order .by this modification became such that it injuriously affected the rights of the- plaintiff by deter.mining the .action and preventing the entry of a judgment from which an appeal woidd lie, he was at liberty to appeal from it. (Code Civ. Proc. § 1347, subd. 5.) But if this be not so, and the order as modified' by the order of this court finally determined the rights of the parties, then the plaintiff was authorized to appeal to the Court of Appeals from the order of the Appellate Division modifying that of the Special Term. (Code-Civ.'Proc. § 190, subd. 1.) If the hearing on The application for judgment on the pleadings were to be regarded as a trial of an issue of law, then I think there wo.uld be no escape from the conclusion that it would be. necessary to regard the order as in effect a decision, and in that view no appeal would lie from the order, upon the same principle upon which it has been repeatedly declared that no appeal lies from a decision, whether made upon the trial, as in directing a nonsuit, or formally, in writing, and directing a judgment. (Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514; Spies v. Munroe, 35 App. Div. 527; Robinson, v. Chinese Assn., 42 id. 65; Brauer v. O. S. Nav. Co., 77 id. 407; Smith v. Thompson, 118 id. 6 ; Withers v. State of New York, 61 id. 251.) Such orders are, however, appealable, and this court has frequently entertained such appeals. (Searle v. Halstead & Co., 130 App. Div. 693; Clark v. Levy, Id. 389; Levy v. Roosevelt, 131 id. 8; Jones v. Gould, 130 id. 451.) If the hearing on such a motion is to be deemed a trial, then surely it must be a trial of an. issue of law, for an issue of fact could not be determined *589without evidence, and .yet the Legislature has not altered the provisions of section 964 of the Code which declares that an issue of law arises only upon a demurrer. Moreover, if the hearing be regarded as a trial, then it would be necessary to file an exception to) the order in order to present a question for review on the appeal from the judgment. (Code Civ. Proc. §§ 992, 994,. 995; Frederick v. Gity of Johnstown, 47 App. Div. 221.) What I wrote on the former appeal herein (132 App. Div. 182) in attempting to show that the court at Special Term on a motion for judgment on the pleadings under section 547 of the Code of Civil Procedure, is without authority to allow an amendment of the pleading, was not intended as an expression of opinion that for the purpose of review on appeal the motion is to be deemed as if made on a trial.
I am, therefore, of opinion that the appeal should be dismissed.
Order and judgment reversed, with ten dollars costs and disbursements, and motion for judgment denied, with ten dollars costs. Settle order on notice.