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Meyers v. Anwal Realty Corp.

222 A.D. 65 Court First Department, Decision date 1927-12-02 English

Delivered by Proskauer, J.

Contents

Majority

p. 65
Isaac Meyers, Appellant, v. Anwal Realty Corporation, Respondent.
First Department,
December 2, 1927.

Headnote

Appeal — Appellate Division — judgment entered on order of affirmance recited affirmance but adjudged merely that plaintiff recover costs — there was no adjudication of affirmance — defendant is entitled to order requiring plaintiff to enter proper judgment of affirmance so that appeal may be taken to Court of Appeals.
Where the plaintiff on an appeal to the Appellate Division enters a judgment which merely recites the affirmance of the judgment rendered below, but orders, adjudges and decrees merely that the plaintiff recover a stated amount of costs, the defendant is entitled to an order requiring the plaintiff to enter a proper judgment of affirmance so that the defendant can appeal to the Court of Appeals. The defendant could not appeal from the judgment entered in this case.
p. 66
Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of August, 1927.
The order vacated a judgment entered upon the order of this court affirming a judgment of the Supreme Court, New York county, and directed the plaintiff in lieu thereof to enter a judgment in proper form upon the order of the Appellate Division.
Morse 8. Hirsch of counsel [.Morris & Samuel Meyers, attorneys], for the appellant.
H. M. Schaap of counsel [Lewis & Schaap, attorneys], for the respondent.

Plaintiff recovered a judgment against the defendant. On appeal to the Appellate Division the judgment was affirmed. (See 218 App. Div. 762 .) Plaintiff thereupon entered an order of affirmance and a judgment which contained a recital of the affirmance, but ordered, adjudged and decreed merely that the plaintiff recover $116.15 costs. In the judgment there was set forth no adjudication of affirmance. The defendant appealed to the Court of Appeals from the order of affirmance and not from the judgment, and the appeal was dismissed by the Court of Appeals. ( 245 N. Y. 646 .) The defendant thereupon moved at Special Term to vacate the judgment for $116.15'costs, and to require the plaintiff to enter a proper judgment of affirmance from which the "defendant could appeal to the Court of Appeals, and an order to that effect was made at Special Term. The plaintiff attacks the correctness of this order on the ground that the defendant could have appealed from the improper judgment and that, therefore, its time to appeal is wrongfully extended by this order. If his premise is correct that defendant could have appealed from the improper judgment, its time to appeal would in no event be extended by the order made below. But his premise is erroneous, for an appeal from this improper judgment would have been wholly ineffective. In Hermann v. Ludwig ( 227 N. Y. 632 ), where an appeal was taken from a similar judgment, the Court of Appeals remitted the case to the Supreme Court “ for such action as may be deemed proper.” The defendant is justified in requiring the plaintiff to enter a proper judgment of affirmance.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dowling, P. J., Merrell, Finch and McAvoy, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.

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