Rich v. Manhattan Railway Co. 138 N.Y. 668

Alexander Rich, Appellant, v. The Manhattan Railway Company et al., Respondents.

The judgment in an equity action adjudged that plaintiff was not entitled to equitable relief, and that unless within twenty days after entry of judgment, or if an appeal was taken within twenty days after entry of order on final appeal, plaintiff served notice of intention to try the action as one at law, and paid the costs, defendants might enter an order dismissing the complaint. Held, that the judgment was not a final one, and so was not reviewable here.

(Argued June 9, 1898;

decided June 27, 1893.)

Appeal from judgment of the General Term of the Court 'of Common Pleas for the city and county of New York, entered upon an order made March 1Y, 1892, which affirmed adjudgment in favor of defendants, entered upon a decision of the court on trial at Special Term.

The following is the opinion in full:

*669“The judgment in this action adjudged that the plaintiff was not entitled to equitable relief, and directed a dismissal of the complaint, with costs, unless within twenty days from its entry or, if an appeal was taken within twenty days after the entry of the order on' the final appeal, the plaintiff served notice upon the defendants that he elected to try the action for damages to the premises described as an action at law before a jury and pay the costs incurred to the date of notice, and if the plaintiff failed to make such election within the time specified the defendants might enter an order dismissing the complaint, with costs.

“ This was plainly not a final judgment, and hence not appealable to this court, and we cannot, therefore, now consider or determine any of the questions involving the merits which have been discussed upon the briefs of the counsel for the plaintiff and the other property holders similarly situated.

“ The appeal must be dismissed, with costs.”

Leo C. Pessar for appellant.

Brai/nard Toldes for respondents.