Furniss v. Furniss

Ingraham, P. J.:

This judgment was entered in pursuance of an order of the Special Term overruling demurrers to the complaint and directing an interlocutory judgment requiring the defendants individually and as trustees to account,. and granting to plaintiffs the relief demanded in the complaint. -The defendant trustees appealed from that order, and this court in a decisión entered herein has reversed the order and sustained the demurrers, giving the plaintiffs leave to amend. (Furniss v. Furniss, No. 1, 148 App. Div. 211.) After the entry of that order the interlocutory judgment was entered, and from that interlocutory judgment this- appeal is taken.

It is claimed by the respondents that this appeal ¡should be dismissed because the judgment appealed from was entered by default. The judgment recites the demurrer, the order of the court overruling it and allowing the demurring defendants to answer within twenty days and upon then* failure to answer that judgment should be entered for the relief demanded in the complaint, and a failure of the defendants to answer within the time allowed; and that then on motion' of the plaintiffs’ attorneys the judgment was entered. It does not appear from the judgment that notice of the entry of judgment was given to the defendants, although they had appeared in the action or that the defendants appeared in opposition to the motion, but the judgment was entered in pursuance of an order directing judgment after the decision of a motion for judgment on the pleadings. In People v. Manhattan Peal Estate Co. (74 App. Div. 535), where final judgment was entered in pursuance of the directions contained in an interlocutory judgment which overruled the defendant’s demurrer to the complaint, it was contended by the plaintiff that the judgment appealed from was rendered upon the defendant’s default and that consequently no appeal would lie. The court said that a contrary rule was laid down in Smith v. Barnum (3 N. Y. Supp. 476) and the court acquiesced in that decision. Upon appeal to the Court of Appeals (175 N. Y. 133) that court entertained the appeal and reversed the judgment on the ground that the demurrer should have been sustained. This seems to me to dispose of the question and justifies an appeal from the judgment.

As we have reversed the order upon which this judgment was based it follows that the judgment itself must be reversed, with costs..

Clarke, Scott, Miller and Dowling, JJ., concurred.

Judgment reversed, with costs.