Carling v. Purcell — 29 Abb. N. Cas. 478

Majority

p. 478

CARLING v. PURCELL.

N. Y. Common Pleas, General Term;

March, 1893.

Headnote

1. Appeal.} An order of the Special Term of the N. Y. common pleas, dismissing an appeal from the city court under Rule 11 of the former court, on the ground that the attempted appeal was not perfected by the giving of an undertaking, does not affect a substantial right, and is not appealable to General Term.

2. The same.} It is still necessary to give an undertaking in order to perfect an appeal from the city court of New York to the court of common pleas, notwithstanding the amendment of 1890, dispensing with such security in cases of appeal to the supreme court from inferior courts.

3. Statutes ; amendment.] The rule that a statute which expressly adopts another must be deemed to have incorporated the statute adopted ipsissimis verbis, and that future additions to or modifications of the latter are not included in the adoption unless a contrary intention is clearly manifested,—applied, holding that the provisions of the Code of Civil Procedure applying to appeals to the court of common pleas from the city court of New York, the provisions of that Code regulating appeals to the supreme court from inferior courts, did not render the prac

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tice in the former case subject to changes thereafter made in the latter statutes not expressly made applicable.

Appeal from order of the Special Term of the Court of Common Pleas from the city and county of New York, dismissing an appeal from a judgment of the General Term of the City Court of New York, on the ground that appellant had not perfected his appeal by giving security for costs.

Thomas J. Farrell, for appellant.

Edward W. S. Johnston, for respondent.

Plaintiff sought to appeal to this court from a judgment of the General Term of the city court of New York, which affirmed a judgment for defendant. To that end he served a notice of appeal, but did not give the security required to perfect the appeal by section 1341 of the Code of Civil Procedure before its amendment of chapter 450, Laws of 1890. Defendant thereupon, under the provisions of Rule 11 of the Special Rules, applied to this court at Special Term, and on notice.to plaintiff, for an order dismissing the appeal, this order was granted, and from it the present appeal is attempted to be taken.

Section 1341 of the Code of Civil Procedure, as originally enacted (see chap. 1, Laws of 1876), provided that, upon the appeal to the supreme court from an inferior court, security must be given to render it effectual, and the security intended is the same as provided for in case of an appeal to the court of appeals (Code Civ. Pro. § 1326; Lane v. Humbert, 16 Daly, 186 ). Sections 3191-3194 regulate appeals from the city court of New York to this court, and section 3192 -declares that titles first and third of chapter twelfth of the act of 1880, chapter 178 (comprising secs. 1293, 1323, 1340-1345), shall be applicable to such appeals, except as sections 3191 and 3194 may otherwise prescribe. By section 7, chapter 450,

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Laws of 1890, section 1341 of the Code of Civil Procedure,, was so amended as to dispense with security to perfect ani appeal to the supreme court from an inferior court, and the query is whether or not this amendment applies to appeals from the city court of New York to this court.

It is a rule which governs 'the interpretation of statutes that a statute which expressly, or by necessary implication, adopts another, must be deemed to have incorporated the statute adopted ipsissimis verbis and that future-additions to or modifications of the latter are not included' in the adoption unless a contrary intention is clearly manifested (Sutherland on Statutory Construction, § 257 ; Endlichon Interpretation of Statutes, § 85, page 115 ; Knapp v. City of Brooklyn, 97 N. Y. 520 ; Matter of Main St. etc., 98 Id. 454). Section 1341 of the Code of Civil Procedure, at the time of the enactment of section 3192 (May 6th, 1880). required security to render the appeal effectual, and as the last mentioned section contains nothing from which an intention to include future additions to or modifications of section 3141 in the adoption is inferable or apparent, the rule of interpretation referred to precludes the application of the amendment which dispenses with the security on appeals from the city court of New York to this court. Hence, to render such an appeal effectual, security must still be given.

Pursuant to the provisions of section 1347 of the Code of Civil Procedure, an appeal to the General Term of a superior court (of which this court is one, section 3343, subdivision 1) from an order made at Special Term, can only be taken when the order (1) grants, refuses, continues or- modifies a provisional remedy; (2) grants or refuses a new trial; (3) involves some part of the merits ; (4) affects a substantial right; (5) in effect determines the action and prevents a-judgment from which an appeal might be taken ; or (6) determines a statutory provision to be unconstitutional. Clearly, the order dismissing the appeal is not among the cases provided for, unless it may be success

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fully claimed that it affects a substantial right. But the effect of the omission to give the required security was to render the appeal ineffectual and the notice of appeal to this court a nullity (Raymond v. Richmond, 76 N. Y. 106 ; Burnham Mfg. Co. v. Thayer, 82 Id. 610). No appeal, was pending; the order dismissing it was unnecessary ; no right whatever of the plaintiff was involved, and the order was, for that reason, not appealable.

The appeal should, therefore, be dismissed, with costs.

Daly, Ch. J., and Pryor, J., concurred.

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Cases cited

Knapp v. City of Brooklyn 97 N. Y. 520 N.Y. 1884-12-16 p. 480
Raymond v. Richmond 76 N. Y. 106 N.Y. 1879-01-23 p. 481