159 N.Y.S. 1035 | N.Y. App. Div. | 1916
This action was tried in the County Court of Erie county. A judgment was rendered July 11, 1913, in favor of the defendant Lyman C. Smith. An appeal to the Appellate Division of the Fourth Department was taken by the defendant John L. Smith from the judgment and from a supposed order denying a motion for a new trial. This resulted in a reversal of the judgment and supposed order and the granting of a new trial. (159 App. Div. 934.) Upon review in the Court of Appeals it was discovered by that court that the record in the Appellate Division contained no order denying a motion for a new trial, and, therefore, the Court of Appeals reversed the Appellate Division and remitted the case to that court to pass upon the appeal from the judgment without reference to any supposed order denying a motion for a new trial. Certain peculiarities which characterized the trial are pointed out in the opinion of the Court of Appeals. (2161ST. Y. 495.) Certain other remarkable irregularities and unusual features have developed since, as will be observed by our recital of the events and incidents which followed the reversal by the Court of Appeals.
The defendant John L. Smith has attempted to remedy the defect in the original record by having a formal order denying
Not being quite satisfied with this, the defendant John L. Smith on January 24, 1916, procured from the County Court of Erie county (Honorable Philip A. Lahstg, the present county judge of Erie county, presiding) an order directing that the original order under date of May 21, 1913, made by County Judge Taylor, be entered and directing the form of the order so made by County Judge Taylor; and further directing the order of County Judge Taylor, made January 7, 1916, to be the record and order of the court and directing the clerk to sign the same nunc pro tunc, as of May 21,1913. The defendant Lyman 0. Smith moved before Honorable Harry L. Taylor to vacate the order made by him January 7, 1916. This motion was denied.
Out of all this medley of practice come four appeals to this court, the same having been sent here by the Fourth Department. (173 App. Div. 956.) The defendant John L. Smith presents for consideration again the original appeal from the judgment; he also appeals from the order or orders, just recently obtained, denying his motion for a new trial. An appeal is taken by the defendant Lyman C. Smith from the order of Honorable Harry L. Taylor refusing to vacate his order of January 7, 1916; he also appeals from the order of the County Court of Erie county, above described, dated January 24, 1916.
The Court of Appeals sent the case back to the Appellate Division “ to pass upon the appeal from the judgment in and of itself without reference to any supposed order denying a motion for a new trial.” But the defendant John L. Smith is not willing that it should be heard in that manner; he has undertaken, by procuring a formal order denying his motion
We cannot lend approval to irregularities so unusual and so unnecessary as were resorted to in this case. Were we to tolerate the practice followed here it would bring to naught the sections of the Code and the rules of procedure. It would license and invite all sorts of freaks and tricks and stratagems, and, instead of method and system, our procedure would become disorder and confusion. In this very case the Court of Appeals was particular and exacting as to the practice, and declared that “ regularity of procedure ” required it to reverse the Appellate Division. With the Court of Appeals demanding “regularity of procedure” in this case, how can we give sanction to this eccentricity of procedure and countenance the abnormalities presented here ?
Without the order of January 7, 1916, denying the motion
All concurred, Kellogg, P. J., in result.
Judgment affirmed, with costs. Appeals from orders denying motion of the defendant John L. Smith for a new trial dismissed. The two appeals of Lyman 0. Smith dismissed.