1 How. Pr. (n.s.) 499 | NY | 1885
Judgment was rendered in favor of the defendants by the City Court (late the Marine Court) of the city of New York, and affirmed by the General Term of the City Court. On appeal to the Court of Common Pleas, that court affirmed the judgment and granted leave to the plaintiff to appeal to this court from the judgment, to be entered on the decision of the Court of Common Pleas. An order of affirmance was entered in the Court of Common Pleas, and afterward on the 3d of June, 1884, a judgment was entered in the City Court, reciting that a remittitur had been sent down from *576 the Court of Common Pleas, and making the judgment of the Court of Common Pleas the judgment of the City Court.
Thereupon the plaintiff served notice of appeal to this court "from the judgment entered in the office of the clerk of the City Court" in this action on the 3d of June, 1884, no reference being made in the notice of appeal to the judgment or order to the Court of Common Pleas.
The respondents now take the point that no appeal lies to this court from a judgment of the City Court, and that the appeal should have been from the determination of the Court of Common Pleas at General Term.
Section 190 of the Code of Civil Procedure gives jurisdiction to this court to review upon appeal actual determinations, made at General Term, by the Supreme Court, or either of the Superior Courts, and no others. To this right of appeal there are several exceptions, which are enumerated in section 191, one of which is, that an appeal cannot be taken in an action commenced in the Marine Court unless the court below allows the appeal. The court below in the present case, viz.: the Court of Common. Pleas, did allow the appeal, but we think that the appeal should have been in form from the judgment rendered by the Court of Common Pleas, there being no authority in the Code to appeal to this court from a judgment of the Marine or City Court. The judgment reviewable in this case is that set forth in the remittitur sent down to the City Court.
The appeal, in the form in which it has been taken, is sought to be justified by the provisions of section 3194, which requires that the judgment or order of the appellate court be remitted to the court below to be enforced, and section 3195, which directs that, upon an appeal to the Court of Appeals, the notice of appeal and undertaking must be filed with the clerk of the Marine Court, who must transmit the necessary papers to the Court of Appeals. This direction, however, is not sufficient to establish that the appeal should be taken from the judgment of the Marine Court entered upon the remittitur. If the appeal could properly be taken from that judgment, the direction to file the notice, etc., in the office of the clerk of the *577 Marine Court would not be necessary, for the general provision would apply, that notice of appeal must be served upon the clerk with whom the judgment appealed from is entered, by filing it in his office (§ 1300). The special direction to file the notice in the office of the clerk of the Marine Court is given for the very reason that the appeal is not to be taken from the judgment entered in his office, though he has the custody of the record.
The appeal should be dismissed.
All concur, except ANDREWS and EARL, JJ., dissenting.
Appeal dismissed.