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Lordi v. People's Surety Co.

143 A.D. 477 Court First Department, Decision date 1911-03-31 English

Contents

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p. 477
Antonio Lordi, Appellant, v. People’s Surety Company of New York, Respondent.
First Department,
March 31, 1911.

Headnote

Appeal to Appellate Division — new trial on reversal of judgment of City Court — stipulation for judgment absolute.
No appeal to the Appellate Division lies from an order of the Appellate Term reversing a judgment of the City Court of New York and granting a new trial unless, in addition to an allowance of the appeal by the Appellate Term, the appellant files a stipulation that, if the order he affirmed, judgment absolute may be taken against him. Where such stipulation has not been filed an appeal to the Appellate Division will be dismissed.
p. 478
Motion by the defendant, the People’s Surety Company of Bew York, to dismiss an appeal by the plaintiff.
Edwcvrd M. Grout and Paul Grout, for the motion.
Rosario Maggio, opposed.

The plaintiff obtained a judgment in the City Court which was reversed by the Appellate Term and a new trial granted. ( 69 Misc. Rep. 598 .) The Appellate Term allowed an appeal to this court from the order granting a new trial; but the Appellate Term did not require, nor did the appellant tile in the City Court, a stipulation providing that if the order should be affirmed the defendant should have judgment absolute.

Section 3191 of the Code of Civil Procedure provides that where the appeal from the Appellate Term to the Appellate Division is from an order granting a new trial in an action in the City Court, the appellant must, with his application for leave to appeal, tile an assent on his part that, if the order is affirmed, judgment absolute may be rendered against him. Section 3194 provides that upon an appeal from an order granting a new trial, on a case or exceptions, if the appellate court determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant. The provision of section 3191 is a limitation of the right to appeal. Bo appeal from an order granting a new trial can be taken unless, in addition to the allowance by the Appellate Term, the appellant tiles an assent on his part that, if the order is affirmed, judgment absolute may be rendered against him. In the case of an appeal from the Appellate Division to the Court of Appeals from an order granting a new trial, it was held that the Court of Appeals has no power to review an appeal from an order granting a new trial on exceptions, unless the appeal is accompanied by the stipulation for judgment absolute in case of an affirmance and that the Appellate Division has no power to dispense with the stipulation by allowing that appeal and certifying questions of law for review. (People v. Gaffey, 182 N. Y. 257 ; New York Central & H. R. R. R. Co. v. State of New York, 166 id. 286 ; Mundt v. Glokner, 160 id. 571.) The case of Hart v. North German Lloyd

p. 479
S. S. Co. ( 108 App. Div. 279 ) was an appeal from the determination of the Appellate Term reversing a judgment of the Municipal Court, and in the opinion in that case attention was called to the fact that upon an appeal from an order of the Appellate Term reversing a judgment of the City Court the appellant was required to file such a stipulation; hut there is no provision in relation to an appeal from an order of the Appellate Term ordering a new trial in an action tried in the Municipal Court.

It follows, therefore, that no appeal could have been allowed without the stipulation, and this appeal must, therefore, be dismissed.

Motion granted, with ten dollars costs.

Present — Ingraham, P. J., McLaughlin, Clarice, Scott and Dowling, JJ.

Motion to dismiss appeal granted, with ten dollars costs.

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