Wright v. Chapin. more an order than the In the case of Cam 1021 is an order. It is no decision mentioned in § 1022. bridge Valley Bank v. Lynch (supra), it is held that there is no appeal from such a decision, although it may be an order, because there is no provision in § 1347 for such an appeal. But the court held that the only way in which such a decision may be reviewed is upon an appeal from the interlocutory or the final judgment. It by no means holds, however, that by the provisions of § 1316 the right of review is extended to every order upon appeal from a final judgment, whether mentioned in § 1347 as an appealable order or not. There is no intention of extending the right of appeal by § 1316. All that is intended to be done is to permit the party who feels himself aggrieved by an order, which under the provisions of § 1347 is appealable, and has not already been reviewed upon a separate appeal therefrom, to review such order upon the appeal from the final judgment. This is plainly stated by § 1316, which does not seem to admit of the construction claimed. We think, therefore, that upon an appeal from an interlocutory judgment the decision filed pursuant to 1021 may be reviewed, and also upon an appeal from a final judgment in which notice of an intention to review the interlocutory judgment is given; precisely the same as, upon appeal from a final judgment, a decision filed under 1022 may be reviewed, although no notice is given of an intention to review such an order. It seems to us clear that the appellant is correct in his practice. The complaint in this action alleged that in October, 1889, the plaintiff purchased certain Canadian lands of one Goodwin, and gave him a purchase money mortgage of $60,000. Subsequently, the defendant being about to purchase these lands of the plaintiff, he and Goodwin made an agreement by which Goodwin agreed to accept in satisfaction of the unpaid $50,000 of purchase money and of the mortgage given by the plaintiff, the sum of $52,500; and the defendant promised to pay Goodwin. Wright v. Chapin. this reduced sum. Shortly afterwards, the defendant purchased these lands of the plaintiff, and by the deed agreed to pay Goodwin the $52,500 and to relieve the plaintiff of and from and to indemnify him against all liability whatever to Goodwin. The defendant also by the deed agreed to relieve the lands from the lien of the mortgage, but no time in which the defendant was to perform is alleged. The defendant thereafter paid Goodwin some $30,000 of the $52,500. The plaintiff subsequently re-purchased the land, but avers that by the deed of purchase the obligations of the defendant in the premises were unaffected. Subsequently, Goodwin brought an action in the Canadian courts against the defendant and others, to which the plaintiff was not a party, and obtained a judgment decreeing a foreclosure of the lien of Goodwin upon said lands, and directing a sale thereof for the satisfaction of said lien. Subsequently, the plaintiff commenced an action against the defendant in the Canadian courts to enforce the liability of said defendant to said plaintiff arising from the facts above set forth, in which action the defendant duly appeared, and such proceedings were thereupon had that in May, 1892, the plaintiff duly recovered a final judgment, directing that said defendant pay into court the amount due said Goodwin in respect to his said claim, the amount thereof to be settled, etc., which amount was subsequently settled at $22,429.28, and the costs were thereafter taxed and allowed at the sum of $318.60. The complaint then alleges: "That under and pursuant to the laws of the Province of Ontario and the Dominion of Canada, and under and pursuant to the practice and rules of the said court, the judgment above mentioned was given, and has all the force and effect of a personal judgment for the said sum of $22,429.28, and for the said sum of $318.60, as and for costs and disbursements, making a total of $22,747.88, in favor of the said plaintiff against the said defendant, and plaintiff was and is, under Wright v. Chapin. and pursuant to the said laws, rules and practice, entitled to enforce the said judgment against the said defendant in all ways, and with the same force and effect in or with which he could enforce a personal judgment against the said defendant for the said amount, and that, under and by virtue of the said laws, rules and practice, the plaintiff is the person to receive payment for the purpose of enforcing the same." The complaint further alleges that payment has been demanded, and no part thereof has been paid, and that the whole of said sum is due and owing for which judgment is demanded. A demurrer to this complaint was interposed to the effect that another action was pending between the same parties for the same cause; that there was a defect of parties in that Goodwin was not joined as a party; and that it did not state facts sufficient to constitute a cause of action. The court decided that the amended complaint does not state facts sufficient to constitute a cause of action, and that there is a defect of parties. An interlocutory judgment was entered as above mentioned, and subsequently a final judgment, and from these judgments this appeal is taken. It is urged that the complaint does not state facts sufficient to constitute a cause of action, because by the prayer for judgment the plaintiff seeks to recover for himself the money directed to be paid into the Canadian court by the Canadian judgment. It is urged that that judgment determined that it is into the Canadian court and not to the plaintiff that the defendant must make payment, and when the plaintiff comes into this court in a suit on that judgment, and in the face of it asks that the money be paid to him, it would seem that the rule to which he appeals requires that he be thrown out of court, and the case of Greene v. Republic Fire Ins. Co. (84 N. Y. 572), which was an action on a Mississippi judgment, is cited in support of this proposition. All that that case Wright v. Chapin. decides is that it appearing upon the face of the declaration that the action was brought for the use and benefit of the plaintiff, in view of the rule of the common law which prevailed in that State, that choses in action were not assignable, it was held that the judgment roll furnished presumptive evidence that the plaintiff was the owner of the judgment, and that the plaintiff in the Mississippi action was merely a nominal party having no interest in or right to control it, and that he was not a trustee in any legal sense under the Code, and that the plaintiff alone could sue upon the judgment. In view of the allegation in the complaint that pursuant to the practice and rules of the Canadian Court, a judgment entered in the manner in which this judgment was, entitled the plaintiff to enforce the judgment against the defendant in all ways and with the same force and effect with which he could enforce a personal judgment against the defendant for the same amount, it seems to us that he shows a personal right to maintain his action and collect the money. But it is urged that the appellant's allegation in respect to the laws, rules and practice of Canada and Canadian courts is not sufficient to justify any proof of the law and practice of Canada, and the case of Rothschild v. Rio Grande Railway and Western Ry. Co. (59 Hun, 454, 455) is cited, which case undoubtedly sustains the contention. of the respondent, so far as relates to proof of foreign laws. But this case is, we think, overruled by the case of Schluter v. Bowery Savings Bank (117 N. Y. 125, 131), in which an allegation that a surrogate of New Jersey had jurisdiction and was duly authorized and empowered by the laws of New Jersey to issue letters of administration, was held to be sufficient to authorize proof of the laws of New Jersey and the jurisdiction of the surrogate in issuing letters. The allegation in question in the case at bar being admitted by the demurrer, there seems to be no reason Shapiro v. Burns. why the action upon the part of the plaintiff as the party entitled to collect the money cannot be maintained. The judgment should, therefore, be reversed with leave to the defendant to answer upon payment of the costs of the appeal, and of the demurrer in the court below. PARKER and O'BRIEN, JJ., concurred. SHAPIRO v. BURNS. N. Y. Court of Common Pleas, Special Term; February, 1894. 1. Costs; leave to sue as a poor person.] An order directing plaintiff to give security for costs does not debar him of his right to move at any time after action brought for leave to sue as a poor person. 2. The same.] An infant plaintiff without personal means cannot be denied leave to sue as a poor person on the ground that his guardian ad litem is his father and a man of wealth. 3. The same.] Notwithstanding the disparity of advantage which may exist in such a case, it is not within the discretion of the court on that account to refuse plaintiff the liberty of suing as a poor person on his complving with the conditions prescribed by statute.* Motion for leave to sue as a poor person. Action by Rebecca Shapiro, an infant, by Adolph Shapiro, her guardian ad litem against Michael F. Burns and Timothy Burns. The facts are fully stated in the opinion. Charles M. Koplick for the motion. Wm. S. Cogswell, opposed. *Code Civ. Pro. §§ 458, 459. |