Village of Canandaigua v. Benedict

Hardin, P. J.: Section 1209 of the Code of Civil Procedure provides as follows : “A final judgment dismissing the complaint, either before" or after .a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.” (See Hoag v. Town of Greenwich, 15 N. Y. Supp. 743; Stokes v. Atlantic Avenue R. R. Co., 89 Hun, 2.) Chapter 95 of the Laws of 1890 is entitled, “ An act to amend the Code of Civil Procedure,” and is known as chapter 23 of that Code, and the 1st section of the chapter provides, viz.: “ This title shall be known as the Condemnation Law ” and it contains twenty-eight sections and took effect May 1, 1890. In Dansville, etc., R. R. Co. v. Hammond (77 Hun. 41) it was said, viz.: “ A complete system of practice in condemnation proceedings is provided by chapter 23 of the Code of Civil Procedure.” In Matter of Trustees (137 N. Y. 97) that-chapter was assumed to be revision of the Condemnation Law, and- those cases were approved and followed in City of Syracuse v. Stacey (86 Hun, 450). In section 3367 of the Code of Civil Procedure provision is made for the trial of any issue raised by a petition and answer by' the court oi* before a referee; and it is provided that “ upon such trial the court or referee shall file a decision in writing, or deliver the same to the attorney for the prevailing party, within twenty days after the final submission of the proofs and allegations of the parties; and the provision of this act relating to "the form - and contents of decisions upon the trial of issues of fact • by the court or a referee, and to making and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had in case such decision is not filed or delivered within the time herein required, and to the power's of the court and referee upon such trial, shall be applicable to a trial and decision under this title.” As already stated, it appears in the record now before us that .the deeisiou of the referee and the judgment entered thereupon were not upon the merits. Upon the contrary, the decision of the referee [603] dismissing the proceedings is stated to he “ without prejudice to the plaintiff’s right to begin other proceedings;” and in the judgment it is stated that the proceedings are dismissed “ without prejudice to the plaintiff’s right to begin other proceedings.” Section 1294 of the Code of Civil Procedure provides that “ party aggrieved may appeal.” It has been held that only the party who is aggrieved by the judgment can reverse it, and that the party in whose favor a judgment is given cannot be aggrieved by it. (Fairbanks v. Corlies, 1 Abb. Pr. 150; Hooper v. Beecher, 14 N. Y. St. Repr. 16; S. C., 109 N. Y. 609.) We are of the opinion that the appeal should be dismissed. Follett and Green, JJ., concurred; Adams and Ward, JJ., not voting. Appeal dismissed, with costs.