45 N.Y. 323 | NY | 1871
Whether the order of the city court was properly reversed upon the merits need not be considered, if I am right in my views of the jurisdiction of the Supreme Court. The city court of Brooklyn as a court of civil jurisdiction is a court of record, with jurisdiction unlimited in amount. It possesses all the powers and authority in relation to actions, and the process and proceedings therein, as are possessed by the Supreme Court, and the practice of the Supreme Court is made applicable to and binding upon it. (Chap. 125 of Laws of 1849.) Appeals may be taken from any judgment or final determination of that court, and from any intermediate order involving the merits, and necessarily affecting the judgment, to the Supreme Court, and all the provisions of law relative to appeals, from courts of inferior jurisdiction to the Supreme Court, apply to appeals from that court. (Chap. 102 of Laws of 1850, § 1.) At the time of the passage of this act no appeal was given to the Supreme Court from orders made by an inferior court, and the effect of the reference to the statutes relating to such appeals, was to adopt and apply to appeals from judgments in the city court of Brooklyn, the provisions of law as to the mode and manner *326 of perfecting an appeal, and the giving security and prescribing the effect of the appeal.
The act of 1850, gave the appeal and declared the cases in which it might be brought. The appeal given was from a judgment with the power incidentally to review any intermediate order involving the merits, and necessarily affecting the judgment. No appeal from an order was given, except in connection with an appeal from a judgment. This right of appeal has not been enlarged by any subsequent statute. The Code was amended in 1860 by adding a clause to section 344, which gave an appeal from judgments rendered by a County Court, or by the mayor's courts or the recorder's courts of cities, by authorizing appeals from an order affecting a substantial right made by a County Court or a county judge. Orders made by mayor's or recorder's courts, or by the city court of Brooklyn, are not the subject of an appeal under this amendment. They are carefully excluded by the terms of the act.
The evident intent of the act of 1850 was to give an appeal from final judgments, and a review upon such appeal of intermediate orders involving the merits and affecting the judgment in analogy to the provision authorizing appeals to this court from final judgments of other Courts. (Code, § 11.)
The Supreme Court had no jurisdiction to entertain this appeal. There was no judgment from which an appeal could have been taken, and it follows that there was no appeal from a judgment, and an intermediate order affecting the judgment, within the terms of the statute. The several chapters of the Code regulating appeals prescribe the cases in which, and the orders and judgments from which, appeals may be taken; and while appeals from orders are allowed from the Special Terms to the General Terms of the same court, and in certain cases from the Supreme and other courts to this court, no such appeals are given to the Supreme Court from inferior courts, except from a specified class of orders made by a county court or a county judge. The order of the Supreme Court reversing the order of the City Court of Brooklyn must *327 be reversed, and the order of the latter court affirmed, for the reason stated. If the merits were before us for review, we should incline to the same result regarding the granting of a new trial, for the cause alleged, under all the circumstances, a just exercise of the power vested in the City Court.
The Supreme Court has given the statute a different construction, and entertained appeals from orders of a like character made before the entry of a judgment, upon the ground the words, "necessarily affecting the judgment," might fairly be construed as applying as well to a judgment to be rendered as to one already entered. We think we have given the statute the interpretation and effect which the plain and obvious meaning of the language demand, and that if it is defective, the remedy is with the legislature. Thurber v. Townsend (
The order should be reversed, and that of the City Court affirmed, with costs.
All concur.
Order reversed.
