Majority
p. 5Amos M. Lyon, Respondent, against The New York, Susquehanna, & Western Railroad Company, Appellant. [Special Term.] (Decided May 4th, 1888.)
Headnote
Under the provisions of chapter 435 of the Laws of 1887 for appeals to the Court of Appeals from, judgments and orders of this court, in cases originating in the City Court of New York, no judgment is to he entered in this court, for the purpose of such appeal, on affirmance of a judgment of the City Court; that act does .not amend or alter the provisions of the Code regulating the practice on appeals from the -City Court to this court (Code Civ. Pro., §§ 3194, 3195).Motion for an order directing the clerk to enter judgment.
The action was brought in the City Court of New York, and plaintiff recovered a judgment therein, which, on appeal by defendant, was - affirmed by the General Term of that court. On appeal by defendant from that decision, it was affirmed by this court (See 14 Daly 489 ). Plaintiff applied to the clerk of this court for the entry of judgment in his favor thereon, and upon the clerk refusing to enter such judgment, plaintiff made this motion.
Abbett & Fuller, for the motion.
Vanderpoel, Green, Cuming, Goodwin, opposed.
The motion is based on chapter 435 of the Laws of 1887, providing for appeals to the Court of Appeals-from judgments and orders of - this court in cases originating in the City Court. This law amends subdivision 2 of section. 191 of the Code of Civil Procedure, repeals a portion of chapter 418-of the Laws of 1886, and declares the meaning and intent of that part of the act not repealed. But it in no way amends
p. 6
or alters sections 3194 and 3195 of the Code, which regulate the practice on appeals from the city court to this court. Section 3194 expressly provides that the judgment or order of this court must be remitted to the court below to be enforced according to law; and section 3195 provides that, upon an appeal to the Court of Appeals, the notice of appeal and undertaking must be filed with the clerk of the city court, who must transmit the necessary papers to the Court of Appeals. If the judgment were to be entered in this court it could not be remitted to the City Court, nor could the clerk of that court transmit the papers to the Court of Appeals, as directed by these provisions of the Code, which are now in forcé. It would be an anomaly in practice to have one judgment entered in this court for purposes of appeal to the Court of Appeals, and another in the same action in the City Court, for the purpose of being enforced for the collection of the debt. Nor do I see any countenance for such practice in the law under consideration.'
The motion must, therefore, be denied, but, under the circumstances, without costs.
Motion denied.