Squire v. . McDonald

138 N.Y. 554 | NY | 1893

The judgments, from which the appeals in these cases have been taken, involve amounts less than $500, and an order was obtained from the General Term giving leave to the defendants to appeal to this court. This motion is made in behalf of the respondent to dismiss the appeals, on the ground that the order giving leave to appeal does not state any ground. Subdivision 3 of section 191 of the Code of Civil Procedure explicitly provides that an appeal cannot be taken from a judgment, if the matter in controversy is less than $500, unless the court below, by an order made at the General Term which rendered the determination, or at the next General Term after judgment is entered thereupon, allows the appeal on the ground that a question of law is involved which ought to be reviewed by the Court of Appeals. So much of the provision as requires that the order should state the ground mentioned had been enacted by the legislature in chapter 322 of the Laws of 1874. In the case of Bastable v. The City ofSyracuse (72 N.Y. 64), this court had occasion to consider the form of the order prescribed by the act of 1874, and held, because the order of the General Term in that case was lacking in the statement of the ground, which is lacking in the order in this case, that it was not a compliance with the act of 1874, and dismissed the appeal. The decision in that case is authority for the dismissal of these appeals.

The appellants object that Mr. Wilder, who, as attorney for the respondent, moves for the dismissal of the appeal, has no standing to make the motion; inasmuch as he was substituted as attorney for the respondent by an order made in the court below after the returns were filed in this court. While that practice is irregular and such an order of substitution of attorneys should only be made by order of this court, after the returns are filed here, nevertheless, we do not think the irregularity of the procedure is such as to preclude our acting upon this application to dismiss. There is no question but what the respondent's attorney has been authorized to appear for him, and the fact that he has failed to proceed in a regular manner, to cause his substitution through an order of this court, is not necessarily fatal to the application now made in behalf of the respondent.

In view of the lack of importance of the questions involved in these cases, and of the smallness of the amounts in controversy, we do not think the matter should be remitted to the court below, as requested by the appellants.

The appeals are dismissed, with costs.

All concur.

Appeals dismissed.