Moench v. Yung — 16 Daly (N.Y.) 143

Majority

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John Moench, Respondent, against Mary Yung, Appellant.

(Decided April 7th, 1890.)

Headnote

The Court of Common Pleas, on reversing the final order of a district court in summary proceedings, has power, under sections 2260 and 3218 of the Code of Civil Procedure, to order a new trial.

Appeal from final order of a district court in the city of New York in summary proceedings for recovery of possession of real property.

Upon trial by jury in the district court, a verdict was rendered for plaintiff. From the final order in favor of plaintiff entered thereon, defendant appealed to this court. On the hearing of the appeal, the order was reversed and a new trial ordered. Subsequently, a réargument was ordered on the question whether, upon reversing the final order of the justice, this court had power to order a new trial.

F. J. Bischoff, for appellant.

C.' H. Preyer, for respondent.

The section of the Code relating to appeals from final orders in summary proceedings provides that: “ An appeal may be taken from a final order, made as prescribed in this title, to the same court, within the same time, and in the same manner, as where an appeal is taken from á judgment rendered in the court of which the judge or justice is the presiding officer, and with like effect.....” (Code § 2260). Turning to the section of the Code which regulates appeals from judgments rendered in the district courts, it is found that this court has power to reverse, affirm, or modify the judgment appealed from, and, where a judgment is reversed, to order a new trial (Code § 3213). These sections read together seem to give us the power to order a new trial in the summary proceeding. Appeals in such proceedings are taken with the “ like effect ” as appeals from judgments. With like effect means with like result: and this includes any disposition, in the one case, which the appellate court could make in the other. In the case of Clark v. Carroll (1 Civ. Pro. Rep. 298, note), I held that the provisions of the Code that an appeal from the district courts should be taken “in the manner ” prescribed for appeals from justices of the peace, authorized the same disposition of the former appeal which could be made of the latter: that the “ manner of taking ” includes the manner of disposing, when there is no other provision as to how the appeal shall be heard and determined or as to the award of costs therein (See sections 3213, 3060, and 3067 as they existed in May, 1881, the date of the decision).

It is contended, however, by the appellant that sections 2260 and 3213 should not be read together, for the reason that section 3213 was amended in 1883 by the addition of the clause giving power to order new trials; that prior to that date this court could only reverse, modify, or affirm the judgments of the district courts; and such effect and no other was intended by the legislature in enacting in 1879 section 2260, assimilating the practice on appeals from final orders in summary proceedings to appeals from judgments. This con

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tention is, however, directly opposed to the well settled rule of interpretation that “ all acts on the same subject whenever passed are what is termed in pari materia, are to be construed as if constituting one act, and are to be so interpreted that all of them and all their claims may be operative ” (1 Edm. Stat. xviii).

It is also suggested that, as the Code (§ 2263) provides for restitution in case of reversal in summary proceedings, this excludes the power to make any other disposition if the order be reversed. If this section contained an enactment respecting the powers of the appellate court over the appeal, we should probably be compelled to hold it to be exclusive and to negative the claim of any power not expressly conferred; but the section evidently refers to the power of ordering restitution, only—a power which is merely collateral to the disposition of the appeal.

A new' trial was ordered in this case, and that decision should not be disturbed. As to the application for restitution, I think it should be denied (under the circumstances of the case) with leave to renew in case the landlord fails to proceed with diligence in procuring the new trial to be had. There should be no costs of this reargument, as the question is a new one.

Labbemobe, Ch. J., concurred.

Order accordingly.