certificate than the one presented by the two records upon this appeal. The surrogate may have felt-and ground for this suggestion is found in his typewritten statement submitted with the papers upon this appeal, and in which he says matters outside the record entered into his decision of the motion-that the motion was not made in good faith, and that such matters as he refers to, and not disclosed by the record, indicated hostility based on matters foreign to the case. Even so, the desire, in the interest of the orderly administration of the law, and the respect it should inspire, superinduced by the fact that contestant should feel, though beaten, she had a fair trial, should have prevailed. In McCormick v. Walker, 158 App. Div. 54, at page 58 of the opinion, 142 N. Y. Supp. 759, at page 764, McLaughlin, J., writing for the court, says:

"But the state is bound to furnish to every litigant, not only an impartial judge, but one who has not, by any act of his, justified a doubt of his impartiality."

[3] The state has put a limit on the right of the court to thus furnish relief, under certain circumstances; that limit unfortunately exists in this case. Issue had been joined before, the motion involved here was made and we find section 2477 of the Code of Civil Procedure provides as follows:

"An objection to the power of the surrogate to act, based upon a disqualification, is waived by an adult party to a special proceeding unless it is taken at or before the joinder of issue by that party, or, where an issue is not framed, at or before the submission of the matter or question to the surrogate."

In view of this provision, the order must be affirmed.

(193 App. Div. 349)

BETOR v. CITY OF ALBANY.

(Supreme Court, Appellate Division, Third Department. September 8, 1920.) 1. Appeal and error 91 (6)-Order sustaining demurrer to defense held appealable.

An order of the County Court sustaining plaintiff's demurrer to a defense set forth in the answer affecting a substantial right was appealable, under Code Civ. Proc. § 1342.

2. Appeal and error ~66-Interlocutory judgment not appealable.

A judgment of the County Court, to be appealable, must be final, under Code Civ. Proc. § 1340, and an interlocutory judgment is not appealable. 3. Judgment ~630-City not liable for nuisance created by landowner, who was held not liable.

If a landowner, creating a nuisance consisting of a cellarway extending into the sidewalk, was held not liable for injuries to a pedestrian, in an action against him therefor, the city is not liable, and cannot be sued therefor.

Woodward, J., dissenting.

Appeal from Albany County Court.

Action by Joseph Betor, by Michael Betor, his guardian ad litem, against the City of Albany. From an order sustaining plaintiff's de

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(184 N.Y.S.)

murrer to a defense set forth in the fifth paragraph of defendant's answer, defendant appeals. Order reversed, and demurrer overruled.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Arthur L. Andrews, Corp. Counsel, of Albany (John J. McManus, of Albany, of counsel), for appellant.

Thomas F. Wilkinson, of Albany, for respondent.

JOHN M. KELLOGG, P. J. One O'Neill maintained a cellarway extending from the house line into the sidewalk, and a frame erection prevented pedestrians from falling into it from the side, or at one end; the other end apparently was open. It is claimed that the cellarway, extending into the sidewalk, was a nuisance, and that the defendant is liable for the damages sustained by the plaintiff, who, in using the sidewalk, fell into the cellarway. The answer alleges that the plaintiff had brought an action against O'Neill for the same injury, and had been defeated upon the merits, and that, if the city was liable, O'Neill would be liable over to it, and therefore that the O'Neill judgment constituted a defense.

[1, 2] I think the order is appealable. A judgment of the County Court, to be appealable, must be final. Section 1340, Code Civ. Proc. And clearly an interlocutory judgment is not a final judgment, and therefore is not appealable. Henn v. City of Mt. Vernon, 190 App. Div. 533, 179 N. Y. Supp. 769. The question here does not relate to a judgment, but to an order. The defendant brought the demurrer on for trial as a contested motion, and the result of the motion is an order, and not a judgment. National Park Bank v. Billings, 144 App. Div. 536, 129 N. Y. Supp. 846, affirmed 203 N. Y. 556, 96 N. E. 1122. The order contemplates no judgment upon it, but is a final determination that the alleged defense is without force. It therefore affects a substantial right. See Code Civ. Proc. § 1342.

[3] It is not claimed that the city created the nuisance. It resulted from the acts of O'Neill, and any liability of this defendant is in permitting it to remain. The fault of O'Neill was the cause of the accident. The city was liable for permitting O'Neill's wrong to continue. Therefore O'Neill would be liable over to the city, and the judgment in his favor frees the city from liability, as it cannot be liable, if he is not. Featherston v. N. & C. Turnpike, 71 Hun, 109, 24 N. Y. Supp. 603; City of New York v. Hearst, 142 App. Div. 343, 126 N. Y. Supp. 917, affirmed 221 N. Y. 671, 117 N. E 1064; Pangburn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423. I therefore favor a reversal.

Order reversed, with $10 costs and disbursements, and demurrer overruled, with $10 costs.

COCHRANE and HENRY T. KELLOGG, JJ., concur.

KILEY, J. (concurring). The plaintiff demurred to the defense set up in the fifth paragraph of defendant's answer. The action was commenced in County Court of Albany County. Plaintiff made a

motion, returnable at a Special Term of said court, asking for an order sustaining said demurrer and for judgment thereon in his favor. The hearing upon the motion resulted in the demurrer being sustained, and an order granted to that effect. I do not think this is an interlocutory judgment. Under Taishoff v. Elkema, 171 App. Div. 288, 157 N. Y. Supp. 98, and Dahm v. O'Connell, 179 App. Div. 363, 166 N. Y. Supp. 450, I think it is an order, and as such is appealable. Sections 1340 and 1342, Code of Civil Procedure. The plaintiff, by demurring, having admitted the allegations in paragraph fifth of the answer to be true, an issue is presented that should not be decided upon motion.

I favor reversal.

WOODWARD, J. (dissenting). The complaint in this action asks for damages to the plaintiff by reason of a fall into an unguarded or defectively protected areaway in Dongan avenue in the city of Albany. The defendant, answering, denies the material allegations of the complaint, and sets up new matter in defense. In the fifth numbered paragraph of the answer it pleads as a defense that the premises where the injury occurred belonged to one O'Neill; that the plaintiff had previously brought an action against the said O'Neill in the City Court, and that judgment had been rendered against the plaintiff upon the merits upon the same facts pleaded in this action; that there had been no appeal from this judgment, and that by reason of the adjudication the city of Albany would be deprived of all remedy against the said O'Neill; and generally that the plaintiff was estopped to maintain this action.

The plaintiff demurred to this defense on the ground that the same is insufficient in law upon the face thereof. The demurrer came on for argument before the County Court, in which the action was brought, and resulted in an order sustaining the demurrer. The defendant gives notice "that the defendant hereby appeals * * * from an order made herein by the County Court of the County of Albany on the 27th day of March, 1920, * ** and from each and every part of said order," and we are confronted at the threshold of the inquiry whether this court is authorized to hear the appeal.

The appellant urges that the order sustaining the demurrer is appealable to this court under section 1342 of the Code of Civil Proce dure, and cites several cases, controlling here, provided they have passed upon the point, and attempts to distinguish the very recent case of Henn v. City of Mt. Vernon, 190 App. Div. 533, 179 N. Y. Supp. 769, where the defendant attempted to appeal from an interlocutory judgment of the County Court of Westchester County sustaining a demurrer to a separate defense, and the appeal was dismissed. The court in that case say that the appeal must be dismissed, "because an appeal from an interlocutory judgment is only permissible when the judgment is rendered in the Supreme Court"-citing section 1340 of the Code of Civil Procedure, Fox v. Fox 128 App. Div. 876, 113 N. Y. Supp. 121, and Russ v. Maxwell, 94 App. Div. 107, 87 N. Y. Supp. 1077.

(184 N.Y.S.)

We are unable to understand the supposed distinction, and are of the opinion that Keyes v. Lestershire H. R. Co., 170 App. Div. 926, 154 N. Y. Supp. 1129, Id., 173 App. Div. 336, 158 N. Y. Supp. 617, National Park Bank v. Billings, 144 App. Div. 536, 129 N. Y. Supp. 846, Furniss v. Furniss, 148 App. Div. 211, 133 N. Y. Supp. 535, and Shiffner v. Beck, 159 App. Div. 821, 145 N. Y. Supp. 27, do not sustain the contention. These cases deal with the practice under the provisions of sections 547 and 976 of the Code of Civil Procedure, and do not pretend to make rulings upon matters of appeal.

Section 1340 of the Code of Civil Procedure provides that "an appeal may be taken to the Appellate Division of the Supreme Court, from a final judgment, rendered by a County Court," and section 1342 provides that "an appeal may also be taken, as provided by section 1340, from an order affecting a substantial right made by the court or a judge, in an action brought in, or taken by appeal to, a court specified in said section." But an order sustaining a demurrer to a defense, which does not determine the cause of action, is not an order affecting a substantial right; it is the basis for an interlocutory judgment, and this may be reviewed only upon an appeal from the final judgment. Fox v. Fox, 128 App. Div. 876, 113 N. Y. Supp. 121; Henn v. City of Mt. Vernon, 190 App. Div. 533, 179 N. Y. Supp. 769.

This is emphasized by the provision of section 1349 that an appeal may be taken to the Appellate Division of the Supreme Court "from an interlocutory judgment rendered at a Special Term or Trial Term of the Supreme Court, or entered upon the report of a referee." In Cambridge Valley National Bank v. Lynch, 76 N. Y. 514, the defendant demurred to the complaint and the demurrer was sustained. The plaintiff appealed to the General Term, and that court dismissed the appeal, upon the ground that the decision was not appealable, for the reason that it was an order, and not an interlocutory judgment. The plaintiff claimed that the order was an interlocutory judgment, and as such appealable. The Court of Appeals, in affirming the order of the General Term, held that the order, declaring the decision of the court, was not an interlocutory judgment, and therefore not appealable, and this authority is relied on in Spies v. Munroe, 35 App. Div. 527, 54 N. Y. Supp. 916. In the case cited there was a demurrer to a separate defense set up in the defendant's answer, upon the ground that it was insufficient in law, just as in the present case. The demurrer was sustained, and the defendants appealed, not only from the interlocutory judgment, but from the decision of the court upon which the interlocutory judgment was entered. The court say:

"There is no authority for appealing from the decision. Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514. The appeal must be from the interlocutory judgment. Code Civ. Proc. § 1349. So much, therefore, of the appeal as is taken from the decision, must be dismissed."

To the same effect are Olin v. Arendt, 35 App. Div. 529, 54 N. Y. Supp. 820, Gansevoort Bank v. Empire State Surety Co., 112 App. Div. 500, 503, 98 N. Y. Supp. 382, and Rees v. New York Herald Co., 112 App. Div. 456, 98 N. Y. Supp. 548.

It seems to us entirely clear that an order of the County Court, which merely sustained a demurrer to a special defense, but which could not dispose of the action, is not an order affecting a substantial right, within the meaning of section 1342 of the Code of Civil Procedure, but is merely the foundation for an interlocutory judgment which may be reviewed on appeal from the final judgment under the provisions of section 1316 of the Code of Civil Procedure. Section 1340 clearly provides for an appeal from a final judgment of the County Court, and section 1316 insures the right to review upon an appeal from a final judgment, "an interlocutory judgment or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment, and which has not already been reviewed, upon a separate appeal therefrom, by the court or the term of the court to which the appeal from the final judgment is taken." This merely postpones the right of appeal to the time when the case shall have been finally reduced to judgment, and the special provision for appeal from interlocutory judgments rendered by the Supreme Court in section 1349 indicates clearly a legislative purpose to deny such a right to interlocutory judgments or intermediate orders of County Courts.

An intermediate order, which necessarily affects the final judgment, and which may be reviewed upon an appeal from the final judgment, cannot be said to affect a substantial right of the appellant. The right to appeal is purely statutory, and here the statute has provided a complete review of all questions arising in the course of the action. What more can be fairly asked? The question sought to be reviewed here may never become of importance, for the plaintiff may never establish his cause of action, and we ought not be astute in discovering methods of increasing the burden of the appellate courts beyond the policy deliberately adopted by the laws of the state.

To affirm the order appealed from would be to prevent the defendant from reviewing the question of law raised by the demurrer on an appeal from the final judgment, and, as we are of the opinion that this court is not authorized to review an interlocutory judgment of the County Court at this stage of the action, we conclude that the appeal should be dismissed.

The appeal should be dismissed, with costs.

(112 Misc. Rep. 151)

HEUBSCHMAN v. KUGELMAN et al.*

(Supreme Court, Special Term, New York County. May, 1920.)

1. Pleading 1-"Pleadings” are steps preliminary to judgment.
"Pleadings" are steps in a litigation preliminary to judgment.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Pleading.]

2. Pleading 231-Defendant held without right, after demurrer sustained, to amend as of course.

Where, within 20 days after the service of an answer containing denials and separate defenses, a demurrer to the separate defenses was susFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Order affirmed 193 App. Div. 702, 184 N. Y. Supp. 447.