Ray v. New York Bay Extension Railroad, 155 N.Y. 102

Ray v. New York Bay Extension Railroad

155 N.Y. 102 | NY | 1898

Upon the argument the respondent insisted that this appeal should be dismissed for the reason that the *104 order was not appealable to this court. The ground of this insistence is that it was not a final order in a special proceeding, and, hence, this court has no jurisdiction to review the action of the court below.

Section 190 of the Code of Civil Procedure defines the jurisdiction of this court and, so far as applicable here, it provides that its jurisdiction shall be confined to the review upon appeal of actual determinations made by the Appellate Division in the following cases and no others: From judgments or orders finally determining actions or special proceedings, and also from determinations of that court where it allows the same and certifies questions for review. In this case no appeal was allowed and no questions were certified. Consequently, this court possesses no authority to review this order, unless it is an order finally determining a special proceeding. The respondent contends that it was merely interlocutory, as it provided for a reference to take proof as to the damages sustained by the plaintiff by the appropriation of her land and by the misconduct of the defendant. It is obvious that until the referee shall have heard the parties upon the questions referred to him, and made his report thereon, no final order can be made. The order in this case is clearly interlocutory, and, consequently, not appealable to this court. (Roe v. Boyle, 81 N.Y. 305; Matter of Chaphe v. State of N.Y., 117 N.Y. 511; Crosby v. Stephan, 97 N.Y. 606;Catlin v. Grissler, 57 N.Y. 363.)

If, however, the order could be regarded as final, yet, as it was not made in a special proceeding, no appeal lies to this court. It was to punish the defendant for contempt to enforce a civil remedy, and was instituted by an order to show cause. Such an order to show cause is equivalent to a notice of motion, and the subsequent proceedings are in the action and do not constitute a special proceeding. (Code of Civil Procedure, §§ 2273, 2283; Jeweler's Mercantile Agency v. Rothschild,155 N.Y. 255.)

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed. *105