
    Joseph B. Swan, Plaintiff, v. The Mutual Reserve Fund Life Association, Defendant.
    (Supreme Court, Onondaga Special Term,
    January, 1898.)
    1. Demurrer—Unauthorized- interlocutory judgment — Waiver by-appeal. .
    Where an .interlocutory judgment,, overruling a demurrer-to a complaint, is reversed, on appeal, with leave to the plaintiff to amend upon payment of costs, the defendant is not authorized to enter an interlocutory judgmeiit providing that, upon the failure of the plaintiff to amend within twenty days, the defendant should, without application to the court, have final judgment dismissing the amended complaint with costs, nor has'he any fight thereafter to enter of his own motion such a judgment, upon such a failure to amend in time; but where the ■plaintiff, instead of moving to correct the interlocutory judgment, appeals therefrom to the Court of Appeals, his action waives the defect.
    2. Same —Stay by appeal to the Court of Appeals — Undertaking — Vacation of interlocutory judgment.
    Where,, however,'the plaintiff gives an undertaking upon the appeal to the Court of Appeals, which complies with Code of Civil Procedure, section 1326, proceedings under the interlocutory judgment are stayed; and as its existence may embarrass the plaintiff in that court, the Supreme Court will, as a matter of discretion, vacate it.
    Motion to set aside final judgment, entered in favor of defendant upon an interlocutory judgment sustaining its demurrer to plaintiff’s complaint, and for a stáy of proceedings on and Under said interlocutory judgment until after the' determination of .an appeal from the same to .the Court-of Appeals.
    
      William Kernan, for motion.
    W. T. B. Milliken, opposed.
   Hiscock, J.

In this action the defendant demurred to plaintiff’s complaint. Interlocutory judgment was entered upon the decision of the Special Term, overruling the demurrer with costs, and with leave to the defendant to answer.

Defendant appealed from such interlocutory judgment to the Appellate Division where a decision was rendered and order made “ that the interlocutory judgment and order so appealed from be, and the same are hereby reversed, with costs and demurrer sustained with costs, with leave to the plaintiff to amend his complaint upon payment of costs of the demurrer and of his appeal.” Subsequently and on or about August 30, 1897, the defendant entered an interlocutory judgment upon said order and decision,' substantially complying therewith as far as they went, but adding the following: “Adjudged, that upon the failure of the plaintiff so to amend his amended complaint and pay the said costs within the said twenty days as aforesaid, that final judgment be entered forthwith in favor of the defendant, dismissing the amended complaint of the plaintiff herein with costs.”

Without dwelling upon an intermediate attempt which the plaintiff* made to appeal from said' interlocutory judgment to the Court of Appeals, pursuant to an order made by the Appellate Division on or about October 13, 1897, allowing such appeal and certifying certain questions to be reviewed thereon, the plaintiff on or about October 25, 1897, took an appeal from the interlocutory judgment entered upon the decision and order of the Appellate Division, as above mentioned to the Court of Appeals, which is now pending. Upon such appeal he gave an undertaking which is described in the moving papers as the one “ required by law upon such appeal.”

After said appeal had so been taken and. on or about November 30, 1897, defendant, without application to the court, entered and served a copy of a final judgment with notice of entry thereof purporting to be entered upon the interlocutory judgment heretofore mentioned, dismissing plaintiff’s complaint, plaintiff not having served the amended complaint provided for in said interlocutory judgment.

Plaintiff insists that he will be prejudiced upon the argument in the Court of' Appeals of his appeal allowed by the Appellate Division from the interlocutory judgment entered upon its decision by the existence of the final judgment entered upon said interlocutory judgment, and that said final judgment should be set aside; first, because it is irregular in that it does not conform with the original decision- of the Appellate Division, and was made without any application to the court; secondly, because the appeal from the interlocutory judgment, with the giving of an undertaking, operated as á stay thereunder, and prevented the entry of said final judgment; thirdly, if for no other reason, as a matter of discretion under all of the facts set forth in the moving papers.

I do not think that the final judgment entered was authorized without application by the terms of the original decision and order of the Appellate Division, which did not provide for or direct the form of any final judgment to be entered. The interlocutory judgment, however, which was entered upon said decision and order, did provide for the entry of such a final judgment, and makes.its entry irregular without application to the court. Code, §§ 1021, 1222; Hecla, etc., Mining Co. v. O’Neill, 23 Civ. Pro. 143.

If this interlocutory judgment was in this respect too broad or-unauthorized, it should have been "corrected upon motion, and the plaintiff having not only failed to make such motion, but having recognized and ratified the regularity thereof by his appeal and other proceedings set forth in the moving papers, has not the right to raise this question at this time.

The affidavits, as above indicated, are somewhat meager and indefinite as to the form of the undertaking given- by plaintiff upon his appeal to the Court of Appeals from the interlocutory judgment, but I ássume that it is in accordance with the provisions of the Code, section 1326. This being so it would operate as a stay' of proceedings. under said interlocutory judgment, except in the cases provided by sections 1327, etc., of which this is not one. Defendant’s answer to this .contention, however, is that under the terms of the interlocutory judgment entered, plaintiff had become in default before the authorized appeal was taken and undertaking given, and that, therefore, by virtue of such default, final judgment could be entered after the appeal and undertaking. I do not think, this is so. While plaintiff may Have so gotten in default before the appeal was taken that he could not have served an amended pleading under the terms of the interlocutory judgment, I think, on the other hand, that defendant, by the taking of said steps, was stayed from thereafter taking any proceedings • under his interlocutory judgment. . '

Even if I am wrong upon this subject, I think, as a matter of discretion, the final judgment should be vacated. The' Appellate Division upon argument and full consideration of the matter has deemed it worth while and proper to allow an appeal to the Court of Appeals. Such being the fact, it does not seem necessary or best to run the risk even of embarrassing such appeal by the entry of said final judgment. Its entry has been delayed for several months when, upon defendant’s theory, it could have been entered, and I cannot see that any harm will insult from delaying such entry a short time longer.

The motion, therefore, to vacate said judgment and stay further entry thereof is granted, with leave to the defendant, however, if a proper undertaking has not been executed sufficient and suitable to stay proceedings under said interlocutory judgment, to apply for an order requiring the execution of such a one. ■

Ordered accordingly.  