Lawson v. Speer, 86 N.Y.S. 915

Lawson v. Speer

86 N.Y.S. 915 | N.Y. App. Div. | 1904

Willard Bartlett, J. :

Objection is made to the order brought up for review, on the ground that it is a judge’s order instead of a court order' as it is required to be by section 3265 of the Code of Civil Procedure. We think, however, that it may be regarded as an order of the County Court, notwithstanding the absence of a caption. The notice of motion shows that the application was made to the County Court, the order recites the .motion as having been made to that tribunal, and the indorsement upon the order shovrs that it was entered in the clerk’s office. These circumstances justify us in treating it as a *412court order rather than as an order of the county judge, which that officer would have no authority to make as such.'

In regard to the merits, the appellant concedes that this court has decided against the view for which he now contends, in Fowler v. Dearing (6 App. Div. 221). He argues, however, that our decision in the case cited was in conflict with the conclusion finally reached by the General Term of this department in Watson v. Benz (57 Hun, 398 ; 10 N. Y. Supp. 799 ; reargument ordered, 12 id. 51 ; decided after reargument, 14 id. 942). That conclusion seems to have been influenced chiefly by Zoller v. Smith (45 Hun, 319) ; but the decision in the latter case was not followed in Birdsall v. Keyes (66 id. 233) ; McKuskie v. Hendrickson (128 N. Y. 555), or Pierano v. Merritt (148 id. 289), all of which were cited and considered by us in Fowler v. Dearing (supra).

Section 3071 of the Code of Civil Procedure provides that upon an appeal from a Justice’s Court where the judgment demanded exceeds fifty dollars, all the proceedings are the same as if the action had been commenced in the appellate court, “except as otherwise specially prescribed in this chapter” (Code Civ. Proc. chap. 19). It is suggested that this exception excludes from the operation of section 3071 the whole matter of offers and costs dealt with in sections 3070, 3072, and 3073. We are unable to adopt this construction, as we see nothing in conflict between the provisions of those sections and the provisions of section 3071.

There appears to be no sufficient reason for overruling our decision in Fowler v. Dearing (supra). The learned County Court followed that decision in denying the defendant’s application, and its order should, therefore, be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.