
    FRANK ABBOTT, Resp’t, v . NEW YORK, LAKE ERIE AND WESTERN R. R. CO., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887).
    
    Practice—Appeal—Code Civ. Pro., § 1316.
    An appeal cannot he taken under Code Civ. Pro., § 1316, from a final judgment so as to bring up for review an intermediate order which has already been reviewed by the general term upon a separate appeal.
    
      T. J. & J. W. Lyon, for resp’t; L. E. Carr, for app’lt.
   Pratt, J.

Section 1316 of the Code of Civil Procedure provides that “An appeal taken from a final judgment brings up for review an interlocutory judgment or intermediate order * * * which has not already been reviewed upon a separate appeal therefrom by the court to which the appeal is taken.

The appeal sought to he dismissed upon this motion has already been reviewed by this court upon a separate appeal, and therefore section 1316 does not authorize another appeal to this court as it is embraced within the exception.

Whether the defendant may review the determinations of the general term in affirming the order when he comes to appeal to the court of appeals from a final judgment in case one is entered against him, it is not necessary to determine upon this motion. Section 1350 of Code; Raynor v. Raynor et al., 94 N. Y , 248.

If the defendant succeeds in reversing the judgment before the general term there is no occasion to go to the court of appeals, and if he fails, the granting of this motion puts him in no worse position upon the record with respect to a review of the whole case.

I know of no provision of law requiring a general term to hear two appeals by the same party upon the same subject matter.

Motion granted with ten dollars costs.

Barnard, P. J., and Dykman, J., concur.  