In re the Summary Proceedings by Phillips v. Hogan

126 N.Y.S. 1088 | N.Y. App. Div. | 1911

Smith, P. J.:

This appeal raises two questions: First, whether in an appeal from the final order of dispossession in summary proceedings granted by the City Court of Albany the appellant to perfect his appeal is required to pay any costs. The second question goes to the power of the County Court on motion to dismiss an appeal not perfected.

The second question requires little discussion. If the appeal be not perfected it is not in County Court for argument, nevertheless, it is in form in County Court until dismissed, and the County Court alone has power in the first instance to determine whether it is properly there as incidental to its power to review by appeal.

Upon the first question raised we are also of opinion that the County Court was clearly right. By section 2260 of the Code of Civil Procedure, appeals in summary proceedings are to be taken “ to the same court, within the same time, and in the same manner, as where an appeal is taken from a judgment rendered in the court, of which the judge or justice, is the presiding officer, and with like effect.” By section 14 of chapter 312 of the Laws of 1898 (as amd. by Laws of 1899, chap. 590) it is provided : “ Appeals may be taken from any judgment rendered in said court [City Court of Albany] to the County Court of the county of Albany as prescribed in articles first and second of chapter nineteen of title eight of the Code of Civil Procedure and not otherwise.” By section 3047 of the Code of Civil Procedure, which is in article 1 of title 8 of chapter 19 of said. Code, an appeal from a judgment in Justice’s Court is only perfected by payment of the costs of the action included in the judg-' ‘merit and two dollars as the fee of the justice for making the return.

By section 1 of chapter 438 of the Laws of 1881 it is provided that neither the Justices’ Court of the City of Albany nor the justices of said court shall be allowed any fees for services rendered in said court except that' either of the said justices “ shall be entitled ' to receive such fees in summary proceedings to recover the possession of real property as.are now allowed by law to justices of the peace for like services.” By section 2 of that act certain attorneys’ fees are allowed in the trial of actions in said court. In' 1884 (Chap. 122) the name of this court was changed to “ City Court of Albany.” In 1892 the question came before the Gfeneral Term of the Supreme Court in the Third Department as to whether upon an appeal from the said court it was necessary to pay. the allowances provided for by the 2d section of the act,, and it was held that such costs must be paid before an appeal could be taken. (Schwemmer v. Stratton, 49 N. Y. St. Repr. 537.) Apparently to avoid the effect of this holding, by chapter 312 of the Laws of 1898, it was provided in 'section 14 that “costs required to be paid to perfect an appeal, under section thirty hundred and forty-seven of the Code of Civil Procedure,' shall not include the costs awarded a party under section twelve .of this act.” This provision was re-enacted with slight change of .phraseology when' section 14 was amended by chapter 590 of the Law's of. 1899.

This provision of section 14 of the act of 1898 (as amd. supra) would seem tó be a recognition, if such were necessary, of an existing rule that in'Summary proceedings where the fees-still existed 'as originally in Justice’s Court an appeal could only be perfected by the payment of those fees, and such is the only rule deduciblo from- the statutes above cited. The appeal, therefore, was properly dismissed..

The order should be affirmed, with ten dollars costs and-disbursements.

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All concurred.

Order affirmed, with ten dollars costs and disbursements.