144 N.Y.S. 1 | N.Y. App. Div. | 1913
Lead Opinion
A demurrer to the complaint interposed herein was overruled, and on appeal this court reversed the interlocutory judgment with leave to plaintiff to amend. (Vose v. Conkling, 153 App. Div. 40.) The plaintiff elected not to amend, and suffered final judgment dismissing the complaint, and then filed and served a notice of appeal therefrom. Through inadvertence and a misapprehension of the law on the part of counsel for the plaintiff, that appeal was taken, in form, to the Court of Appeals. If the final judgment followed an affirmance by this court, an appeal direct to the Court of Appeals would have been authorized by section 1336 of the Code of Civil Procedure; but, since it followed a reversal by this court, the Court of Appeals was without jurisdiction to hear the appeal, and could review the judgment only after a further appeal to this court. (Leonard v. Barnum, 168 N. Y. 41; McNamara v. Goldan, 194 id. 315; Will v. Barnwell, 19V id. 298.) On the 8th day of April, 1913, the attention of counsel for the plaintiff was drawn to the fact that a motion had been noticed by the defendants in the Court of Appeals for the dismissal of the appeal, on the ground that that court was without jurisdiction to hear it, which motion was returnable on the 14th of April, 1913; and on examining the Code of Civil Procedure he discovered the error, and on the next day, on an affidavit showing that' in preparing the notice of appeal and in taking the appeal it was his intention to appeal to the court having jurisdiction in the premises, he obtained an order to show cause why the notice of appeal should not be amended so as to show that the appeal was to the Appellate Division. That motion was granted and the order duly entered on the 14th of April, 1913. The motion to dismiss the appeal to the Court of Appeals was submitted to that court on the 2d of June and granted on the 10th of June, 1913. (Vose v. Conkling, 209 N. Y. 521.)
The principal points made for the reversal of the order are that the final judgment, from which the plaintiff attempted to
There is no force in the contention that the notice of appeal is ineffective for any purpose, owing to the fact that it contains no notice of intention to have the interlocutory judgment reviewed. That judgment having been reviewed by this court, the plaintiff was not required to ask in the notice of appeal to this court for another review thereof.
The only remaining question which arises, but upon which the appellants present no argument, is as to whether said section 1303 of the Code of Civil Procedure authorizes such an amendment after the time to appeal from the judgment has expired. Section 1300 of the Code of Civil Procedure, which prescribes how an appeal may be taken, does not expressly require that the notice of appeal shall state the court to which the appeal is. taken; and while the practice requires that the
It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., and Clarke, J., concurred; McLaughlin and Scott, JJ., dissented.
Dissenting Opinion
The defendants demurred to the complaint which was overruled, but on appeal the same was reversed and demurrer sustained, with leave to plaintiff to serve an amended complaint. (Vose v. Conkling, 153 App. Div. 40.) Plaintiff’s attorney supposed that if he did not amend and final judgment were entered, he could appeal direct to the Court of Appeals. This was the course adopted. In doing this he did not intend to appeal to this court and there never has been any pretense or claim made that he did. Subsequently, a motion was made to dismiss the appeal to the Court of Appeals on the ground that that court did not have jurisdiction. The attorney then for the first time ascertained that in order to appeal to the Court of
Here an appeal was not seasonably and in good faith taken from the judgment to the Appellate Division; on the contrary, it was taken and intended to be taken solely to the Court of Appeals. An appeal was never intended to be taken to the Appellate Division until after the time provided by statute within which such an appeal might be taken had expired. Under such circumstances to permit the notice of appeal to be amended is to nullify an express provision of the statute.
I am of the opinion, therefore, that the order appealed from should be reversed and the motion denied.
Scott, J., concurred.
Order affirmed, with ten dollars costs and disbursements.