Mayer v. American Insurance — 15 Daly (N.Y.) 215

Majority

p. 215

Mark Mayer, Respondent, against The American Insurance Company of Boston, Appellant.

(Decided April 1st, 1889.)

Headnote

As section 3191 of the Code of Civil Procedure does not permit an appeal to this court from a final determination of the General Term of the City Court of New York, unless such final determination was made upon an appeal to that General Term, an appeal to this court cannot be taken from a judgment of the City Court entered where exceptions ordered to be heard in the first instance at the General Term have been overruled. An appeal from such judgment lies to the General Term of the City Court, and on appeal from its determination thereon, the overruling of the exceptions may be reviewed by this court. Section 1336, providing for an appeal directly to the Court of Appeals from a final judgment entered at a Trial Term, after the overruling of exceptions heard at the General Term in the first instance, is inapplicable to cases originating in the City Court.

Appeal from a judgment of the City Court of New York entered upon an order of the General Term of that court overruling exceptions ordered to be heard in the first instance by the General Term, and denying a motion for a new trial.

The facts are stated in the opinion.

T. G. Barry, for appellant.

George W. Stephens for respondent.

This appeal appears to have been taken under section 1336 of the Code. That section is not made applicable to appeals from the City Court to the Court of Common Pleas. It is part of title two of chapter twelve of the Code, and though titles one, three, and four of that chapter are made to apply to those appeals, title two is nowhere made applicable (§§ 3190, 3192). The judgment from which this appeal was taken was entered in pursuance of sections 1000 and 1227. There was a jury trial, and the exceptions were, by order of the trial judge, heard in the first instance by the General Term. Those ex

p. 216

ceptions are regarded as equivalent to a motion for a new trial, made by the unsuccessful party, and when they are overruled by the General Term, judgment is taken as if a motion for a new trial had not been made (§ 1227). Final judgment having been taken at the Trial Term, as section 1227 provides that it shall be, an appeal lies to the General Term of the City Court, but the only proceedings brought up for review are those that are incident to the taking of the final judgment. If an appeal from the determination of the General Term of the City Court is then taken to the General Term of the Common Pleas, the overruling of the exceptions and the denial of the motion for a new trial becomes a subject of review (§ 1350). As section 1336, which provides for an appeal directly to the Court of Appeals from a final judgment entered at a Trial Term, after exceptions that are heard in the first instance at General Term have been overruled, has no application to cases that have their origin in the City Court, it was irregular for the defendant to appeal directly to the General Term of the Common Pleas from the judgment that was entered at the Trial Term of the City Court.

Section 3191 does not permit an appeal to be taken to this court from a final determination of the General Term of the City Court unless that final determination was made upon an appeal to that General Term. Here there has not been any appeal to the General Term of the City Court, and the only final judgment that has been entered was entered at a Trial Term.

The appeal cannot be entertained by'this court, but must be dismissed, with costs.

Larremore, Ch. J. and J. F. Daly, J., concurred.

Appeal dismissed, with costs.