Opinion
October 6, 1926.
Appeal from Supreme Court of Washington County.
William E. Bennett and Joseph A. Kellogg, for the defendant, in favor of the motion.
James Todd, for the plaintiff, in opposition.
The defendant upon this motion for reargument, and in the alternative, for leave to appeal to the Court of Appeals, questions the power of this court under section 584 of the Civil Practice Act to direct judgment for an injunction and remit the case to the Special Term for the assessment of damages. (See 216 App. Div. 639.)
We construe the words "final judgment upon the right of any or all of the parties" in section 584 of the Civil Practice Act, broadly to include all such final determinations of a party's right as could have been made by the trial court. ( Lamport v. Smedley, 213 N.Y. 82; Acme Realty Co. v. Schinasi, 215 id. 495; Kaumagraph Co. v. Stampagraph Co., 235 id. 1, 10.)
The judgment in question finally determines all the rights involved in this litigation except the amount of damages. We have directed judgment without ordering a new trial of all the issues in the hope of expediting the determination of this litigation. The question of the power of the Appellate Division is novel and important and should be passed upon by the Court of Appeals.
The motion for a reargument should be denied, and the motion for leave to appeal granted and questions certified.
All concur. Present — HUBBS, P.J., CLARK, DAVIS, SEARS and TAYLOR, JJ.
Order and judgment of reversal, entered May 5, 1926, amended by modifying the 34th finding of fact and the first adjudging paragraph of the judgment. Motion for reargument denied. Motion for leave to appeal to Court of Appeals granted, and questions for review certified. Stay granted pending hearing and determination of appeal.