Jensen v. Union Railway Co.

Lehman, J. The defendant has appealed from two orders of the Appellate Division of the first department, *3 and from a final judgment of the Supreme Court, entered in the office of the Clerk of the-county of Bronx on the 4th day of May, 1932. The notice of appeal from the orders of the Appellate Division states that the defendant appeals from “ the order of the Appellate Division of the Supreme Court for the first department made and entered in the office of the Clerk of the said Appellate Division on the 29th day of April, 1932, reversing the order of the Supreme Court, Bronx county, made and entered herein on the 26th day of March, 1932, which opened the defendant’s default in the above entitled action,” etc. Quite evidently the appeal from the order of the Appellate Division must be dismissed. The notice of appeal from the judgment states that the appeal is taken “ from the final judgment of the Supreme Court entered in favor of the plaintiff herein in the office of the Clerk of the County of Bronx on the 4th day of May, 1932, which judgment was entered as a result of an order of the Appellate Division of the Supreme Court, First Department * * * reversing the order of the Supreme Court, Bronx County, made and entered herein in the office of the Clerk of the County of Bronx on the 25th day of March, 1932, vacating and setting aside the inquest herein, and which said order of the Appellate Division denied defendant’s motion to vacate and set aside said inquest.” The notice of appeal also states that the appellant intends to bring up for review the intermediate orders from which an abortive appeal has also been taken. Upon the appeal from the judgment two closely-related questions arise: First, is the judgment appealed from a default judgment; second, if it is not a default judgment, does an appeal lie directly to this court? The defendant has appeared and answered the plaintiff’s complaint. When the case appeared on the ready calendar of the Supreme Court for trial, the defendant’s counsel was not ready to proceed, and further proceedings were then had which resulted in a verdict for the *4 plaintiff in the sum of $25,000. The defendant’s counsel took no part in those proceedings, which took the form of an inquest. The defendant immediately thereafter obtained an order to show cause “ why an order should not be made and entered herein vacating and setting aside the inquest herein and any judgment which may have been entered thereunder and restore this case to the trial calendar of this court for trial.” The order to show cause contained a stay of all proceedings on the part of the plaintiff or his attorney, and no judgment could be entered until that stay was vacated. The justice at Special Term who heard the defendant’s motion granted the motion, and an order was entered vacating and setting aside the “ inquest ” which had been taken before another judge at Trial Term. The plaintiff thereupon appealed to the Appellate Division, which reversed the order made at Special Term. Then, for the first time, the judgment in favor of the plaintiff could be entered, and the defendant now appeals from that judgment. If the judgment is the result of a trial of the action and was entered after the refusal by the Appellate Division of a new trial, then the judgment is not a default judgment, and is appealable directly to this court. (Civ. Prac. Act, § 590.) On the other hand, if the judgment is the result of an inquest qccasioned by the failure or refusal of the defendant to appear at a trial, then it is certainly clear that the judgment is a default judgment from which no appeal can he. The record on appeal does not include the proceedings in the court below which resulted in the verdict. No case has been settled. Perhaps if we had that record before us, it would appear that the protest of the defendant’s counsel asking for an opportunity to prepare for trial constituted an appearance at the trial in behalf of the defendant, and that the refusal of the court to grant the application for a postponement of the trial might *5 constitute a ruling in the course of the trial. Then the appellate court could have reviewed the soundness of that ruling. That was the case in Citizens Trust Co. v. Prescott & Son, Inc. (221 App. Div. 426), where the attorney for the defendant appeared on the trial, made his objection and excepted to the ruling on the record. Here, however, the defendant took another course. Its attorneys moved in Special Term to vacate the “ inquest,” thus conceding that there was no appearance at any trial, and in fact that no trial was ever had. In truth, the defendant has impaled itself on the horns of a dilemma. If the application for postponement of the trial constituted an appearance at the trial, and the refusal of that application constituted a ruling made at the trial, then obviously no co-ordinate justice of the Supreme Court could upon motion reverse that ruling and grant a new trial. In such case, the motion for a new trial should have been made before the justice who presided at the trial, in accordance with section 549 of the Civil Practice Act, or at Special Term, under section 552. Even in that case the motion could not have been heard by another judge without a specific direction from the trial judge that it be so heard. Even were that not true, the defendant would have been required to procure a case to be settled in the same manner as on an appeal from a judgment, before making a motion for a new trial. (Rule 221.) The defendant did not adopt any of the methods provided by the Civil Practice Act, sections 549-552, for obtaining a new trial. On the contrary, it asserted that there had been no trial, and moved to vacate the inquest, so that a trial might be had. Otherwise it is clear that the justice at Special Term would have been compelled either to deny or dismiss the motion, and if he granted the motion, the Appellate Division would have been compelled to reverse his order, and if it failed to do so we should be compelled, on any appeal bringing *6 up for review the determination of the Appellate Division, to reverse the order. Thus, in every stage of the litigation after the so-called inquest, the defendant has assumed the position that the motion made at Special Term was solely a motion to vacate an inquest, so that opportunity might be had for a trial. It could not ask either Special Term, the Appellate Division, or this court to grant a new trial because of any ruling that occurred at the first trial, without a settled case, and it could not ask the justice at Special Term to vacate proceedings held before a co-ordinate justice at which all parties appeared. Thus the defendant asked for relief in the Supreme Court upon the assumption that the verdict of $25,000 is the result of an inquest and not of a trial at which the defendant appeared, and is asking this court to review the denial of the relief asked, upon the assumption that the verdict is the result of a trial at which the defendant did appear; and even here asks us to review, not the ruling made by the trial justice, but the reversal by the Appellate Division of an order of another justice of the Supreme Court vacating and setting aside without appeal the proceedings before a co-ordinate justice. Even if "we were to assume that the judgment in this case is not a default judgment and is appealable, yet no appeal would lie directly to this court. The judgment is not a judgment entered upon the decision of the Appellate Division which would be appealable as of right under section 588, subdivision 1, Civil Practice Act. It is a judgment entered after trial or inquest which has never been reviewed by the Appellate Division. That subdivision refers plainly to a judgment entered by the clerk to whom the order of the Appellate Division and the case and papers upon which the appeal was heard were transmitted, pursuant to such order and in accordance with section 621 of the Civil Practice Act. Here the judgment was entered upon the proceedings which constituted a *7 trial or inquest, and not upon the decision of the Appellate Division. No appeal has ever been taken from the judgment of the Appellate Division, and no case has been settled and presented to the Appellate Division, and no settled case is in the record before us. A party intending to appeal from a judgment rendered after the trial of an issue of fact must, except as otherwise prescribed by law, make a case and procure the same to be signed and settled by the judge by or before whom the action was tried. (Civ. Prac. Act, § 575.) Moreover, no appeal can be taken from such a judgment direct to this court unless there has been refusal by the Appellate Division of a new trial, and, as before pointed out, the Appellate Division may pass upon a motion for a new trial only where there has been a settled case. A case was settled in Girling v. City of New York (197 N. Y. 302) and Logan v. Guggenheim (230 N. Y. 19). In those cases the appellant did in truth rely upon form rather than substance. In this case the appellant asks us to disregard not only the letter but the spirit of the provisions of the Civil Practice Act and of the Constitution, limiting the jurisdiction of this court; and in the guise of an appeal from a judgment to review an intermediate order refusing to vacate a trial or inquest. The appeal should be dismissed, with costs.