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Stoutenburgh v. Svecenski

133 N.Y.S. 922 Court Argued February term, 1912, before SEABURY, GUY, and BI-JUR, JJ. Decision date 1912-03-08 English

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p. 922
STOUTENBURGH v. SVECENSKI.
(Supreme Court, Appellate Term.
March 8, 1912.)

Headnote

1. Courts'(§ 190[1] )—New York Municipal Court—Appealable Orders.
An order of the Municipal Court, denying plaintiff’s potion for reargument of defendant’s motion for judgment on the pleadings, is not appeal-able.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. §§ 103, 3379%.]
2. Courts (§ 190*)—New York Municipal Court—Appealable Orders— Motion for Judgment on Pleadings.
An appeal will not lie from an order of the Municipal Court denying or granting a motion for judgment upon the pleadings, such order not being enumerated in Municipal Court Act (Laws 1902, e. 580) §§ 253-255; but the appeal, if any, should be taken from the judgment.
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by John H. Stoutenburgh against Louis Svecenski. From two orders of the Municipal Court of the City of New York, plaintiff appeals.
Appeal dismissed.
Argued February term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
Walter E. Godfrey, for appellant.
James J. Green, for respondent.

A motion was made by the defendant" in this case for judgment upon the pleadings. This motion was granted, and an order entered thereon. Subsequently the plaintiff made a motion for a reargument of the first motion, which was denied, and he appeals from both orders.

[1] An appeal will not lie from an order denying a motion for a reargument. Percy v. Sire, 119 N. Y. Supp. 225 ; Romes v. Boettger, 120 N. Y. Supp. 754 ; Tucker v. Dudley, 104 App. Div. 191 , 93 N. Y. Supp. 355 .

[2] We need not now determine whether or not the Municipal Court can entertain a motion for judgment on the pleadings. See Roberts v. Spero, 62 Misc. Rep. 261 , 114 N. Y. Supp. 898 ; Martin v. Lefkowitz, 62 Misc. Rep. 490 , 115 N. Y. Supp. 64 ; Maune v. Unity Press, 139 App. Div. 740 , 124 N. Y. Supp. 504 . For clearly an appeal will not lie from an order denying or granting a motion for judgment upon the pleadings, as such an order is not one of those enumerated in sections 253, 254, and 255 of the Municipal Court act (Laws 1902, c. 580) Spiegelman v. Union Ry. Co., 95 App. Div. 92 , 88 N. Y. Supp. 478 . And the appeal, if any, should have been taken from the judgment, and not from the order. Metropolitan El. R. R. Co. v. Johnston, 84 Hun, 83 , 32 N. Y. Supp. 49 ; Citron v. Bayley, 36 App. Div. 130 , 55 N. Y. Supp. 382 ; Kromback v. Penn. Steel Co., 84 N. Y. Supp. 297 .

Appeal dismissed, with $10 costs.

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