Andrews v. Cohen — 215 N.Y. 699

Majority

p. 699

James E. Andrews, Appellant, v. George Cohen, Respondent.

(Argued May 24, 1915;

decided June 8, 1915.)

Headnote

Reported below (3 eases), 168 App. Div. 580 .

Motion to dismiss two separate appeals taken from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 31, 1914, modifying and affirming as modified a judgment in favor of plaintiff entered upon the decision of the court on trial at Special Term in an action to restrain an encroachment upon real property. Also motion to dismiss an appeal from a judgment entered November 4, 1914, upon said Appellate Division order and attempting to bring up for review certain other orders made therein.

The motion was made upon the ground that the Court of Appeals had no jurisdiction to entertain the appeals; that permission to appeal had not been obtained and that the exceptions were frivolous.

William L. Qellert for motion.

Henry T. Fay opposed.

This is a motion to dismiss three appeals. Two of the appeals (referred to in the notices marked Exhibit A and Exhibit C attached to the motion papers) are appeals from orders made in this action by the Appellate Division — not from any judgment of that court.

p. 700

These orders are not reviewable here except upon leave duly granted. The appeals from such orders must, therefore, be dismissed, with costs.

The appellant by a third notice appeals from the judgment of the Appellate Division modifying that of the Special Term. (See return, folios 1 to 23.) In the notice of appeal he states that he will bring up for review various orders which are specified. This appeal being from the judgment as distinguished from the order of modification' appears to be properly taken and, therefore, the motion to dismiss must be denied. It is not necessary at the present time to adjudge how far the appellant may bring up for review the orders specified in his notice of appeal.

Motion to dismiss appeals from orders granted and appeals dismissed, with ten dollars costs of motion. Motion to dismiss appeal from judgment denied, with ten dollars costs.