110 N.Y.S. 142 | N.Y. App. Div. | 1908
Lead Opinion
The notice of appeal herein was from an order made by the Special Term of the Supreme Court amending the judgment herein, and entered June 8th, 1889. We dismissed the appeal for the reason that the time to appeal had been limited to 30 days by service of notice of entry of the order in 1889, and also for the reason that there had been no substitution of the heir, devisee or executor (as the case might be) in the case of deceased parties who would be respondents if alive when the notice of appeal was so filed in 1907. A history of the case is given in our opinion (121 App. Div. 262).
The appellant has caused the county clerk to enter on our order of dismissal what is called a judgment of dismissal, and has taken an appeal to the Court of Appeals from such judgment of the county clerk. A motion to vacate such judgment was denied by an order of the Special Term of the Supreme Court, and this appeal is from that order.
Our order dismissing the appeal from the said order amending the judgment, and entered in 1889, is not appealable to the Court of Appeals. Appeals to the Court of Appeals may be taken as of right only from “ judgments or orders finally determining actions or special proceedings ” (excepting orders granting new trials on exceptions), which means, as has been authoritatively determined, (1) final judgments determining actions, and (2) final orders determining special proceedings, on the merits. It is not enough that the action or special proceeding be ended by the judgment or order; it must be determined on the merits (Van Arsdale v. King, 155 N. Y. 325). Eow neither our order nor the county clerk’s'judgment, if it have force, determines this action in the sense above stated. The merits of the appeal from the order of 1889 have not been determined by us. The question is one of strict right, i. e., of whether the case be one in which the right of appeal to the Court of Appeals be given.
It is said that the later case of Stevens v. Central National Bank (162 N. Y. 253) is a departure from the rule. If it be it does not help the present case. There an appeal from a final judgment was dismissed by the order of the Appellate Division, and the appellant was allowed to enter a judgment on such order and appeal from it
The order should be reversed and the motion granted.
Woodward, Jenks and Rich, JJ., concurred; Hooker, J., read for affirmance.
Dissenting Opinion
The judgment in this case was entered upon the findings of the court in the year 1889; about a month after the judgment was entered a motion was made to amend the findings and the judgment in an essential particular. The motion was granted. In the year 1907 one of the defendants appealed from this order. We dismissed the appeal, first on the ground that no oz-der of substitution had been made of the heir, devisee or executor of one of the respondents, deceased, since the entry of the order and before the service of the notice of appeal. Another ground of our dismissal was that subsequent to the argument and submission of the appeal it was shown by affidavit on a zuotion to dismiss the appeal that a notice of entry had been served in the year 1889, with a copy of the order, and hence the appellant’s time in which to appeal had been limited to thirty days.
On our order of dismissal the respondent ón this appeal entered a jtidgmenb of dismissal and has appealed therefrom to the Court of Appeals. This appeal is from an order denying a motion to vacate that judgment, which motion was made at the Special Term of the Supreme Court.- The respondents upon this appeal rely upon the authority of Stevens v Central National Bank (362 N. Y. 253) as their authority for the practice they have adopted in entering a
I do not concur with Hr. Justice Gaynor. In the first place I deem it wholly unnecessary and somewhat out of place for us to undertake to determine whether or not an appeal lies to the Court of Appeals from our order of dismissal of the appeal from the order amending the judgment. It appears that such an appeal is now in the Court of Appeals and in the natural order of things it is for the Court of Appeals to determine for itself' whether the appeal lies there or not. What we may say cannot possibly affect the ultimate decision of that question. In fact we cannot decide it even temporarily.
In the second place the practice in this particular seems to be not wholly without doubt. I agree that ordinarily there is no such thing as entering judgment in the county clerk’s office on our decision except in cases where the appeal heard by us was from a judgment; that is, an order only may be entered upon our decision when the appeal heard by us is from an order. But the respondents in this appeal have adopted the other practice, relying upon the Stevens case; that case may or may not be sufficient warrant for his practice. The fact remains that they have entered judgment of dismissal and have appealed therefrom to the Court of Appeals. The very question presented by this appeal is, therefore, now in the Court of Appeals and will in due course, it is presumed, be argued before that court and decided by it. It seems to me, therefore, that unless there is some controlling reason why we must decide this appeal now, the delicate thing for ns to do is to defer determining this appeal until the Court of Appeals has passed on the question; in other words, we ought not to anticipate a decision of the Court of Appeals upon a question which affects that court, namely, its jurisdiction to hear an appeal in a given case. I am not unmindful that it ordinarily becomes our duty. to decide appeals from orders which come regularly into this court; and a case might arise where we would have to pass upon the question of the appealability of an order to the Court of Appeals. It is not necessary, however, to do this in this case. The appeal now pending in the Court of Appeals is entirely independent of the appeal now before us, and our deci
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.
