108 N.Y.S. 811 | N.Y. App. Div. | 1908
This action was commenced in the City Court and resulted in a judgment in favor of the plaintiff. From that judgment the defendant appealed to the Appellate Term; on the 12th of Décember, 1907, the judgment of the City Court was affirmed; on the ■14th of December, 1907, the remittitur from the Appellate Term was tiled in the office of the clerk of the City Court and an order was entered making the judgment of the Appellate Term the judgment of the City Court, and on the 16th of December, 1907, judgment was entered'in the City Court affirming the judgment of the Appellate Term. Subsequently and on the 19th of December, 1907, the defendant obtained an order requiring the plaintiff to show cause at a Special Term of the Supreme Court to be held in
Appeals from judgments of the City Court are regulated by section 5 of article 6 of the Constitution, which provides that “ appeals from inferior and local courts now heard in the Court of Common Pleas for the City and County of‘•Mew York and the Superior Court of Buffalo, shall be heard in the Supreme Court in such manner and by such justice or justices as the Appellate Divisions in the respective departments which include Mew York and Buffalo shall direct, unless otherwise provided by the Legislature.” Section 3188 of the ■Code.of Civil Procedure, provides that an. appeal to the Supreme Court, may be taken from a final or interlocutory judgment rendered in the City. Court' of the City of Mew York .in a case where an appeal may be taken to the Appellate Division of the Supreme Court from a final, or interlocutory judgment rendered in the Supreme Court. ■■ Section 3194 of the Code provides that the judgment or order of the appellate court must be remitted to the court below to be enforced according to law. Title 1 of chapter 12 contains, general provisions.,relating to appeals provided for in the chapter. Section 1310 of that title provides that “where an
From an examination of these provisions, it would appear that the only jurisdiction that the Supreme Court has in relation to appeals from’ judgments of the- City Court is that the justices designated for that purpose by the Appellate Division shall hear and' decide the appeals. Under-section 1344 of the Code of Civil Procedure an appeal from the City Court may be heard by the Appellate Division of the Supreme Court, or by such justice dr justices of the Supreme Court as may be designated for that purpose by the justices of the Appellate Division sitting in the first judicial department. And the only justice who can allow an appeal to the Appellate Division from' a determination made by Such justice or justices is the justice or justices by whom the appeal was determined or by a justice of the Appellate Division in the. first judicial department. When such an appeal has been heard and decided and the proceed^ ings remitted to the City Court, the Supreme Court has no further jurisdiction in the action, except that the justice or justices who determined the appeal, or a justice of the Appellate Division in the first, judicial department, may allow an appeal to the Appellate Division. No justice of the Supreme Court and no Special Term of the Supreme Court, except a -justice who is authorized to allow an- appeal, has any jurisdiction to make, any order in the action
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a stay denied, with" ten dollars costs.
Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. ' .