50 N.Y. 176 | NY | 1872
The order in this and several hundred other actions now before us and depending upon thé result of this appeal is not appealable. Only such orders arising upon any interlocutory proceedings, or upon any question of practice, are appealable, as affect a substantial right and do not involve any question of discretion. (Code, § 11, sub. 4.) A departure from the Code in any particular, in the progress of an action, does not necessarily affect a substantial right. A strict and literal compliance with a statutory regulation is not necessarily of the substance of the remedy, or substantial in its character. Whatever is á question of practice is of the same character, whether it arises under a positive statute, an express rule of the court, or the settled usages and law of procedure. Hnder either a substantial right may be affected, and the questions may be such as to exclude the exercise of any discretion, but these are exceptional cases. Most of the provisions of the Code are modal and intended for the regulation of the formal procedure in the action, and are no more sacred than any other rules of practice. The Codo recognizes this: 1st. By directing that any defect or error in the pleadings or proceedings which do
But one bill of costs.should have been allowed by the court below in granting or refusing the motions made at the •same time upon the same or similar papers, and which might have been made on one set of papers, entitled in the different actions, and where the attorneys were the same. (Jackson v. Keller, 18 J. R., 310; Same v. Garnsey, 3 Cow., 385; Jerome v. Boeram, 1 W. R., 293; Schermerhorn v. Noble, 1 Den., 682; Post v. Jenkins, 2 How. Pr. R., 33; Cortland Co. Mut. Ins. Co. v. Lathrop, id., 146.) The appeal should be dismissed, with costs, upon the principle settled by these cases.
Should the summons in this case have been issued under the first or second subdivision of section 129 of the Code ? The first provides for “ an action arising on contract, for the recovery of money onlythe second for “ other actions.” Is this “ an action arising on contract ?” It is an action for a penalty for violating a statute. It is claimed to arise on contract, upon the principle stated in 3 Black. Com., 161, whereby a forfeiture imposed by the by-laws of a corporation upon any that belong to the body, immediately creates a debt, for which an action of debt will lie by the party injured. This principle is declared by Blackstone to be “ an implied, original contract to submit to the rule of the community whereof we are members.” He then adds that the same reason may, with equal justice, be applied to all penal statutes.
This principle, if carried out by the same reasoning, would abolish all actions of tort. The implied original contract to obey all statutes, by the same principle and the same reasoning, extends to all laws, whether statutory or common law. It is surely not confined to the obeying of all statute law simply. Thus assumpsit, if not debt, would lie for an assault and battery, or for arson, etc.
I incline to think that this provision of the Code had no
In section fifty-three of the Code “ an action for a'penalty ” is stated as impliedly different from an action on contract for the payment of money, and a justice of the peace is expressly given jurisdiction of both. The Code thus recognizes the difference between actions upon contract and an action for a penalty.
It is not enough that the recovery is to be for “ money only,” but the action must arise on contract also, to bring the case under the first subdivision. '
I think it plain that this action does not arise on contract.
Is this order appealable ?
To be appealable, it must be “ an order affecting a substantial right, not involving any question of discretion.” (Sub. 4, § 11 of Code.)
It seems to me that the opinion of the Supreme Court is right, that this order is not appealable.
It is difficult to perceive the “ substantial right ” involved in this order.
The defendant made the motion and brings the appeal. What benefit to the company, if this summons had been under the second instead of under the first subdivision ? If the complaint were sworn to and it is an action on contract for the payment of money only, under the first subdivision the plaintiff may take judgment before the clerk without proof for the amount claimed in the summons. If not sworn to, the clerk takes proof of the claim, except upon instruments for the payment of money only, upon such instruments; he assesses the amount due upon its simple production before him. (Code, § 246, as amended in 1858.)
If the summons erroneously issued under the first subdivision compelled the assessment by the clerk instead of the judge, it might be urged, at least with plausibility, that the defendant was deprived of a substantial right—that he had a right to a judge instead of a clerk to adjudge his rights. But
So that if the defendant suffer a default upon this summons, he loses nothing. If he appear and take issue the case is tried before another tribunal.
The only effect the summons can possibly have, when issued under the first subdivision, is to limit the amount of recovery to the sum claimed therein in case of defendant’s non-appearance ; certainly he could take no more than that sum if his complaint be sworn to. (§ 246.)
This, so far as it goes, is a benefit to defendant, viz.: that he may rely that the plaintiff will take judgment only for a specified sum if defendant does not appear.
I do not perceive that the defendant can sustain any injury by this mistake. If he cannot, I do nor think the order involves a substantial right.
The chief purpose of this summons is to get the defendant into court. Where the complaint is served at the same time, showing the cause of action and the amount claimed, the summons would seem to be of not the least value, though its formal issue may be required.
In my opinion, no substantial right is involved in this order —no possible loss can be sustained by the defendant by its issue under the first instead of the second subdivision.
Beside, the court had power to amend it, if there were any reason for so doing, and was bound to disregard it by the Code.
The appeal should be dismissed.
For dismissal of appeal Chubch, Ch. J., Allen, Peokham and ¡Rapallo, JJ.
¡Rapallo, J., concurs upon. authority of section 1Y6 of Code.)
Against dismissal, G-koveb and Folgbb, JJ.
Appeal dismissed.