Opinion
March 29, 1910.
Lansing G. Hoskins, for the motion.
Bissell Riley, opposed.
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 direct 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 appeal to Court of Appeals denied with ten dollars costs.