Silver & Co. v. Waterman

Woodward, J.: The plaintiff sets up a cause of action against the defendants for the purpose of restraining the latter from the manufacture and sale of certain lamps claimed to be made upon a model and under labels belonging to the plaintiff. The defendants, answering the complaint, denied generally the allegations of the complaint and. then set up ■ five affirmative defenses. Subsequently the defendants moved the court at Special Term for permission to insert in each of the sepa- . rate defenses the words, “ repeat the denials to plaintiff’s complaint herein contained in paragraphs marked ‘ I ’ and ‘ II ’ of this amended supplemental answer, and hereby make the same a part of this defense.” Plaintiff opposed this motion, Was heard orally and by brief, and the motion was. granted. In the. following month the plaintiff moved this court at Special Term, held by another justice, to strike out these identical words, and from the order denying such motion this appeal is taken. We know of no rule of practice which permits one justice of the Supreme Court, sitting at Special Term, to review the .act of another justice at Special Term, and if for no other reason the order appealed from, and which in effect refused to sanction this practice, should be affirmed. When the plaintiff had contested the right' of the defendants to this amendment and was defeated,, there was a right of appeal to this court.. Instead of talcing-such an appeal the plaintiff accepted the costs imposed as the condition of granting the original order, thus waiving a right to review such order (Logeling v. New York Elevated R. R. Co., 5 App. Div. 198, 200) and seeks to accomplish, through indirection, what would not be permitted directly. As said by the court in Platt v. N. Y. & Sea Beach, R. Co. (170 N. Y. 451, 458): “ The practice .of moving before one judge at Special Term to declare void the order or judgment of another judge at Special Term is not sanctioned by any provision of the Code that I am aware of or by ,any controlling authority. It virtually amounts to an appeal from one Special Term to another Special Term for a review of- the first order.” The. Code of Civil Procedure provides for appeals to the Appellate Division and to the Court of Appeals, and these provisions are exclusive of all other appeals. The plaintiff clearly waived any right to appeal from the original order, and it would not be in line with the orderly adminis [341] tration of courts to permit indirectly a review of an order where the party, by accepting a benefit under the order, has waived all right' to review. The pleading as .it stands, while it may be in the way of a demurrer, does not prevent a fair and impartial trial of the cause of action set forth, and there is no good reason why well-settled principles of practice should be overlooked to help the plaintiff to an opportunity to demur. The order appealed from should be affirmed, with costs. ' Hooker, Rich-and Miller, JJ., concurred; Gaynor, J.,read for . reversal.