Lake v. Gibson — 2 N.Y. 188

Majority

p. 188

Lake vs. Gibson.

Headnote

The code of procedure authorizes an appeal to this court only in cases where there has been an actual determination of the subordinate court at a general term. And therefore an appeal will not lie to bring up errors in the record or judgmen. roll, where the matter has not been actually passed upon at a general term of the court below.

The plaintiff had a verdict in the New-York superior court on which judgment was duly entered. The defendant appealed to this court. No case or bill of exceptions had been made, nor any motion in the superior court to set aside the verdict.

N. Hill, Jr., for the plaintiff, moved to dismiss the appeal, and cited sections 11 and 282 of the code of 1848. He insisted that although an appeal was substituted for a writ of error, yet the right of review, except in cases where there has been an actual determination of the subordinate court, was abrogated.

Geo. F. Comstock, for the appellant.

An appeal will not lie unless there has been an actual determination at a general term. A writ of error by the former practice, would lie to bring up tne record merely, But writs of error are abolished by the code, and the appeal al lowed by that enactment does not extend to such a case.

Appeal dismissed.^[1]

1 Gridley v. Daggett, 6 How. Pr. 280 . Cook v. Allen, 5 Hun 561 . No appeal lies directly to the court of appeals from a judgment at special term. Potter v. Van Vranken, 36 N. Y. 619 . Wade v. Delaware, Lackawanna and Western Railroad Co., 41 Ibid. 520.