45 Misc. 572 | N.Y. App. Term. | 1904
Upon the trial of the issues in the City Court, after both parties had rested, plaintiff’s complaint was dismissed and the exceptions were ordered to be heard at the Appellate Term in the first instance and the entry of judgment was suspended in the meantime. The case, therefore, does not come before the Appellate Term upon an appeal but pursuant to the order ordering plaintiff’s exceptions to be heard there in the first instance before judgment.
This at once presents the question whether the Appellate Term as constituted by and under the rules of the Appellate
Provision was also made for the division of the State into four judicial departments and the organization of an Appelláte Division for each department, and such Appellate Division was to have the jurisdiction then exercised by the Supreme Court at its General Terms and by the General Terms of the Superior City Courts. During 1895, appropriate legislation was had in aid of these constitutional provisions and, among other things, section 1000 of the Code of Civil Procedure was amended by chapter 946 of the Laws of 1895, by substituting the Appellate Division for the General Term.
The examination so far made sufficiently shows that all the provisions referred to as contained in the titles and sections of the Code mentioned, relate exclusively to appeals, and that if the case now before us presented an appeal from an order of the City Court covered by any of the said provisions, the court would have jurisdiction to hear and determine it. In such case the designation of the appellate tribunal by the name conferred upon it by the Appellate Division viz.: Appellate Term, would be sufficient. But the difficulty is that the present case involves no appeal whatever. It is, as above shown, a motion for a new trial ordered to be heard here in the first instance before judgment, and such motion is not embraced in any of the provisions of the Code so far considered.
In pursuing the inquiry further it will be found that, in making provisions for regulating the effect and application of the Code, subdivision 7 of section 3347 of title II of chapter XXII, provides that titles I, II, and VI and article 2 of title V of chapter X, apply to proceedings taken in one of the courts specified in subdivision 4 of the same section, and that subdivision 4, thus referred to includes the City Court. Section 1000 which is contained in title I of chapter X, is thus made to apply to the City Court It provides that a
For the foregoing reasons the conclusion is unavoidable that the Appellate Term has no jurisdiction to entertain a motion for a new trial upon exceptions ordered to be heard by it in the first instance before judgment.
The proceedings in the case before us must, therefore, be dismissed and the plaintiff remitted to her remedy in the court below. If it should be too late for an order to be entered directing that plaintiff’s exceptions be heard by the Appellate Division in the first instance, the order as entered may under section 1000 of the Code be revoked, and the defendant may then enter judgment and the plaintiff appeal from it.
As the question presented is a novel one, the dismissal is ordered without costs.
Bischoff and Gildersleeve, JJ., concur.
Procéedings dismissed, without costs.