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Pasternak v. Weiss

60 N.Y.S. 494 Court N.Y. App. Term Decision date 1899-10-25 English

Delivered by LEVENTRITT, J.

Contents

Majority

p. 494
(29 Misc. Rep. 314.)
PASTERNAK v. WEISS.
(Supreme Court, Appellate Term.
October 25, 1899.)

Headnote

Appeal—Order Affirming Judgment—Necessity of Judgment.
An appeal from an order of the general term of the city court of New York affirming a judgment of the trial term, and not from the judgment entered on the order, will not lie.
Appeal from city court of New York, general term.
Action by Israel Pasternak against Hannah Weiss, as administratrix, etc. From an order of the general term of the city court of New York ( 59 N. Y. Supp. 1111 ) affirming a judgment for plaintiff rendered on a verdict of a jury, defendant appeals.
Dismissed.
Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
Albert J. Wise, for appellant.
Samuel I. Frankenstein, for respondent.

This appeal must be dismissed. Hie defendant has appealed only from the order of the general term affirming the judgment of the trial term,—omitting to take an appeal from the judgment entered on the order. The record does not even disclose that any such judgment was entered. None is printed in the case on appeal, and, although the return by the clerk of the city court recites that the judgment was duly entered, this is undated, and there is nothing to show that the notice of appeal was not served prior to the entry. An appeal to this court from an order of the general term of the city court affirming a judgment is unauthorized. A judgment should first have been entered on the order of affirmance, and the appeal taken from that. Kilmer v. Bradley, 80 N. Y. 630 ; Derleth v. De Graff, 104 N. Y. 661 , 10 N. E. 351 ; Code Civ. Proc. § 3191; Kreizer v. Allaire, 16 Misc. Rep. 6 , 37 N. Y. Supp. 687 ; Waltenberg v. Bernhard (Sup.) 58 N. Y. Supp. 325 .

The appeal must be dismissed, with costs to the respondent. All concur.

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