Wittemann Bros. v. Forman Bottling Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Wittemann Brothers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of May, 1916, dismissing the complaint and directing the cancellation of a lis pendens, and also, as stated in the notice of appeal, from the decision of the court filed in said clerk’s office on the same day.
1Opinion of the Court
Blackmar, J.:
We find in the papers two notices of appeal, one from an “ order ” which dismisses the complaint on the trial for failure of proof and cancels a notice of pendency of action, and the other from the decision of the justice who tried the action. An appeal does not lie from a decision, but only from the judgment which carries it into effect, and the so-called “ order ” was in effect a judgment and this appeal will be considered as taken from a judgment.
The complaint was dismissed at the end of the plaintiff’s case, and thereafter the justice who presided at the trial made findings…
2Cases cited9 opinions
- Starin v. . KellyNew York Court of Appeals · 1882
- Veazey v. . AllenNew York Court of Appeals · 1903
- Kerker v. . LevyNew York Court of Appeals · 1912
- Baldwin v. . ShortNew York Court of Appeals · 1891
- Beman v. . ToddNew York Court of Appeals · 1891
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3Cited by2 opinions
- Bennett v. BennettAppellate Division of the Supreme Court of the State of New York · 1978
- Marino v. AlliaudAppellate Division of the Supreme Court of the State of New York · 1959