150 N.Y. 225 | NY | 1896
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *227 In determining this motion it becomes necessary at the outset to consider whether the provisions of chapter 559 of the Laws of 1896 deprive the appellant of the right *228 to appeal in this action. Section nine of article six of the Constitution provides: "The legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved." Thus chapter 559 was fully authorized by the provisions of the Constitution, and if that statute was in force when the appeal was taken, then it is manifest that the appellant had no right of appeal, and this court has no authority to hear and determine it.
The order of the Appellate Division, which affirmed the judgment and order denying the appellant's motion for a new trial, was granted on the eighth day of May, 1896, but the judgment in pursuance of that order was not entered until the twelfth day of that month. The appeal is from the judgment and not from the order of affirmance. Indeed, such an order is not appealable. (Kilmer v. Bradley,
In determining the right of appeal we must consider that it is not a natural or inherent right, but rests upon the statute alone, and may be taken away by the legislature unless conferred by the organic law of the state. The jurisdiction of the Court of Appeals is designated and created by law, and it has no other. (People ex rel. Grissler v. Fowler,
Therefore, the real question we are called upon to determine is whether the statute of 1896 was in force when the judgment appealed from was entered. The amendatory statute under consideration provides that it shall take effect immediately. It was signed by the governor on the same day the judgment was entered. The papers read upon this motion disclose that the judgment was entered May 12th, 1896, at one o'clock and fifty minutes, P.M., but there is nothing before us to show at what time on that day the governor approved the statute prohibiting an appeal from a judgment of affirmance thereafter rendered in an action for personal injuries, when the decision of the Appellate Division is unanimous. That statute having contained a provision that it should take effect *229
immediately, it became a law upon being signed by the governor. (Matter of Kemeys, 56 Hun, 117.) There being no proof as to the time of day when the act became a law, the question in this case must depend upon the presumption as to the time when it took effect. It seems to be settled by the weight of authority that, in the absence of evidence as to the precise time when approved, an act operates during the entire day of its approval. In Krom
v. Levy (
In Arrowsmith v. Hamering (
In Lapeyre v. United States (17 Wall. [84 U.S.] 191, 203) it is said: "It is argued that a statute takes effect from the date of its approval, unless a different time is fixed by law. As a general rule this is true. It is further said that, by relation, it covers the whole of the day of its approval. This, also, is generally true. It has often been decided, however, that where justice requires it the true time of its passage may be shown even to the hour of the day." As early as 1763 this doctrine was recognized by Lord MANSFIELD in Combe v. Pitt (3 Burr. 1423, 1434), where he said: "But though the law does not, in general, allow of the fractions of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour may not be so too, where it is necessary and can be done." Many other cases might be cited where this question has been under consideration, but it seems unnecessary to refer to them at this time. We deem it sufficient to say that while the authorities bearing upon the exceptions to the general rule that the law will disregard fractions of a day are not in all respects harmonious, still we have found none which we regard as sufficient, under the circumstances of this case, to justify us in holding that the general rule that a statute covers the entire day of its approval does not obtain. As no one has an inherent or natural right to appeal, it cannot be said that it is unjust to apply to this case the general rule as to the time when a statute takes effect.
There is no proof that the act of 1896 was not approved *232 before this appeal was taken. In the absence of such proof, and under the authorities bearing upon this question, we think the statute must be presumed to have taken effect at the commencement of the day on which it was approved by the governor. As the judgment was not entered until the afternoon of that day the statute must be regarded as in force at that time, and it follows that the appellant's right to appeal was thus cut off.
Our conclusion upon this question renders it unnecessary to examine the other grounds upon which the motion is based, as the appeal must be dismissed upon the ground already considered.
All concur.
Appeal dismissed, with costs.