Vose v. Conkling

[2] The principal points made for the reversal of the order are that the final judgment, from which the plaintiff attempted to appeal, was the judgment of the Appellate Division, and that therefore the Special Term was without jurisdiction to amend the notice of appeal. If it were a final judgment of this court, the point that the Special Term could not amend the notice of appeal would be well taken, for authority to amend a notice of appeal is confined to “the court, in or to which the appeal is taken.” Code of Civil Procedure, § 1303; Bulkley v. Whiting Mfg. Co., 136 App. Div. 479 , 121 N. Y. Supp. 159 ; Waldo v. Schmidt, 139 App. Div. 589 , 124 N. Y. Supp. 189 , affirmed 200 N. Y. 199 , 93 N. E. 477 . If, however, the final judgment' were the judgment of this court, there would be no occasion for appealing to this court therefrom before appealing to the Court of Appeals, and the Court of Appeals would not have dismissed the appeal. McNamara v. Goldan, supra; Code Civ. Proc. § 190, sub-div. 1. The authorities relied upon in support of the contention by the appellants do not sustain it. In Dwight v. Gibb, 208 N. Y. 153 , 101 N. E. 851 , the point decided was that where this court made an order modifying a judgment of the Supreme Court, and after the entry of the order in the office of the clerk of this court a certified copy thereof with the original papers upon which the appeal was heard was transmitted to the county clerk and the proper judgment in accordance therewith was entered by the county clerk, such judgment was the judgment of this court, and the appeal to the Court of Appeals should be therefrom, and not from the order of this court. In Lamport v. Smedley, 157 App. Div. 442 , 142 N. Y. Supp. 350 , the point decided was that it was not competent for the Special Term to stay the execution of a decree entered pursuant to the order of this court without further proceedings in the court from which the appeal was taken, on the ground that such decree was the decree of this court. The other case relied upon by the appellants is McNamara v. Goldan, supra. In that case the opinion of the Court of Appeals recognized that a final judgment entered after the reversal of an interlocutory judgment by the Appellate Division is literally the judgment of the Special Term, "but for the purpose of determining the authority of the Court of Appeals to entertain an appeal from the subsequent affirmance thereof by the Appellate Division, it was held that, since the Special Term had no discretion, the affirmance of such final judgment by the Appellate Division was in effect a reversal of

In the case at bar this court did not direct the final judgment, and that could not be entered without an application to the Special Term (see Leonard v. Barnum, 168 N. Y. 41 , 60 N. E. 1062 ), and although the Special'Term had no discretion in the premises, for it was its duty to accept the law as declared by this court, yet the final judgment was the judgment of the Special Term, and not the judgment of this court, within the purview of section 1303 of the Code of Civil Procedure, which authorizes the court “in or to which the appeal is taken” to,permit an amendment of a notice of appeal. Manifestly, the Legislature intended, by the provisions of that section, to confer authority upon two courts to allow amendments to notices of appeal, namely, the court of review, and the court whose action is under review. The only practical effect of' such an appeal to this court is to pick up, on the way to the Court of Appeals, the order of this court reversing the interlocutory judgment, for the hearing here is necessarily pro forma. Nevertheless, for the purposes of these Code provisions, the court in which the appeal is taken is the Special Term of the Supreme Court,, and that court has the same jurisdiction as this court to authorize amendments.

[3] There is no force in the contention that the notice of appeal is ineffective for any purpose, owing to the fact that it contains no notice of intention to have the interlocutory judgment reviewed. That judgment having been reviewed by this court, the plaintiff. was not required to ask in the notice of appeal to this court for another review thereof.

[4] The only remaining question which arises, but upon which the appellants present no argument, is as to whether said section 1303 of the Code of Civil Procedure authorizes such an amendment after the time to appeal from the judgment has expired. Section 1300 of the Code of Civil Procedure, which prescribes how an appeal may be taken, does not expressly require that the notice of appeal shall state the court to which the appeal is taken; and, while the practice requires that the court be specified, the omission is an irregularity and not jurisdictional. Silsbee v. Gillespie, 9 Abb. Prac. N. S. 139. In the case -at bar the appeal would lie only to the Appellate Division. It was manifestly the desire of the plaintiff, and the intention of her counsel, and is so shown by his affidavit, to appeal to the court which had jurisdiction to hear the appeal. The fact that, through oversight or misapprehension with respect to the law, he designated the wrong court, is, I think, a matter from the consequences of which his client may be relieved. Section 1303 of the.Code of Civil Procedure provides, among other things, that where a notice of appeal is served seasonably and in good faith upon the clerk or the adverse party, or his attorney, but the appellant “omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other,

It follows, therefore, that the order should be affirmed, with $10 costs and disbursements.

INGRAHAM, P. J., and CLARICE, J., concur.

(dissenting). The defendants demurred to the complaint which was overruled, but on appeal the same was reversed and demurrer sustained, with leave to plaintiff to serve an amended complaint. Vose v. Conkling, 153 App. Div. 40 , 137 N. Y. Supp. 1066 . Plaintiff’s attorney supposed that, if he did not amend and final judgment were entered, he could appeal direct to the Court of Appeals. This was the course adopted. In doing this he did not intend to appeal to this court, and there never has been, any pretense or claim made that he did. Subsequently, a motion was made to dismiss the appeal to the Court of Appeals, on the ground that that court did not have jurisdiction. The attorney then, for the first time, ascertained that in order to appeal to the Court of Appeals he would first have to appeal to the Appellate Division, and it was then that he made his application which resulted in the order here appealed from to amend his notice of appeal by striking out the words “to the Court of Appeals” and inserting in place thereof “to the Appellate Division of the Supreme Court in the First Department.” The time, however, within which an appeal could have been taken to the Appellate Division had, by express provision of the statute, expired. Nevertheless, an order was made permitting the amendment, and it is sought to sustain the same by virtue of the provisions of section 1303 of the Code of Civil Procedure. This section, in substance, provides that where an appellant "seasonably, and in good faith, serves the notice of appeal,” but omits “through mistake, inadvertence or excusable neglect” to perfect the appeal, that then the court in or to which the appeal is taken may, in its discretion, permit the omission to be supplied.

Here, an appeal was not seasonably and in good faith taken from the judgment to the Appellate Division; on the contrary, it was taken and intended to be taken solely to the Court of Appeals. An appeal was never intended to be taken to the Appellate Division until after the time provided by statute within which such an appeal might be taken had expired. Under such circumstances, to permit the notice of appeal to be amended is to nullify an express provision of the statute.

I am of the opinion, therefore, that the order appealed from should be reversed, and the motion denied.

SCOTT, J., concurs.