Butler & Vosburgh v. Miller — 1 N.Y. 428

Majority

p. 428

Butler and Vosburgh vs. Miller.

Headnote

When an appeal under the judiciary act of December, 1847, {Slat. 1847, p. 639,) was brought prior to the 1st day of July, 1848, from a decision of the supreme court granting a new trial on a bill of exceptions; held, that the jurisdiction of the court to hear and determine such appeal was not taken away by the code of procedure.

Whether appeals may still be brought from the decisions of the supreme court on bills of exceptions in cases where the action was pending prior to the first day of July, 1848, qmre.

'H seems, that the code does not take away a right of appeal which had attached before it went into operation.

Appeal by the plaintiffs, under the fifth section of the j'udinary act of December, 1847, [Stat. 1847, p. 639,) from a derision of the supreme court granting a new trial to the defendant upon a bill of exceptions. The appeal was taken prior to me first dsy of July last, when the code of procedure took effect. Stat. 1848, p. 497.)

K. Miller, for the defendant,

said the court could not hear the appeal, as the provisions of the judiciary act on this subject were' repealed by the 388th section of the code. He cited also §§ 271, 382, 11.

John H. Reynolds, for the plaintiffs, cited § 10 of the code.

The code of procedure specifies the cases in which there may be an appeal to this court, without including the appeal on a bill of exceptions provided for by the judiciary act of December, 1847, (§§ 282,11,) and abolishes writs of error and appeals as they have heretofore existed. (§ 271.) And-further, all statutory provisions inconsistent with the code are repealed, (§ 388.) But originally these sections only applied to actions commenced on or after the first day of July last; (§§ 8,391, 10;) and the supplemental code has only applied sections 271 and 282 to future proceedings in suits pending on that day. (§ 2.) This appeal was taken prior to the first day of July last, and

p. 429

we still have jurisdiction to hear it. (Code, § 10.) Tb.e act of December, 1847, when applied to appeals depending on the first of July, is not so inconsistent with any thing in the code as to come within the repealing section. (388.) The code-makers did not intend to take away any right which had already attached under the old law ; but only to change the law for the future.

Whether appeals may still be brought from the decisions of the supreme court on bills of exceptions, in cases where the action was pending prior to the first day of July, is a question which need not now be decided.

We are of opinion that this appeal, and the others which have been mentioned as depending on the same question, may be prosecuted in the same manner as though the code had no been passed.

Ordered accordingly.