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Rosenberg v. General Realty Service, Inc.

259 N.Y. 123 Court N.Y. Decision date 1932-04-26 English

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p. 123
Sol Rosenberg et al., Appellants and Respondents, v. General Realty Service, Inc., et al., Defendants, and Union Trust Company of Rochester, Respondent and Appellant.
(Argued March 25, 1932;
decided April 26, 1932.)
p. 125
Arthur E. Rosenberg for plaintiffs, appellants and respondents.
The Appellate Division had power to make the order amending plaintiffs’ notice of appeal to the Court of Appeals. (Waldo v. Schmidt, 200 N. Y. 199 ; Myers v. Lederer, 119 App. Div. 332 ; Vose v. Conkling, 159 App. Div. 201 ; Rothenberg v. Metzger, 227 App. Div. 444 ; Kent v. Sibley, 5 N. Y. Supp. 448 ; Seymore v. Hughes, 55 Misc. Rep. 248 ; Kirchner v. Abbots Bakeries, 92 Misc. Rep. 402 .)
Arthur E. Sutherland, Jr., for defendant, respondent and appellant.
The Appellate Division had no power to make the order amending plaintiffs’ notice of appeal so as to make it an appeal from the judgment instead of the order. (Kirkegaard v. Forman, 248 N. Y. 526 ; Lavalle v. Skelly, 90 N. Y. 546 .)

Whenever a judgment has been entered in the County Clerk’s office on the order of the Appellate Division and the notice of appeal indicates an intention to bring up the determination of the Appellate Division for review, a misdescription of the judgment in the notice of appeal as an order or determination or decision affects no substantial right. The notice of appeal may be amended or the mistake disregarded as immaterial under section 105 of the Civil Practice Act.

p. 126
The order amending plaintiffs’ notice of appeal to the Court of Appeals herein should be affirmed, without costs, and the question certified answered in the affirmative. The judgment should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg and Crouch, JJ., not sitting.

Ordered accordingly.

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