In re White — 88 N.Y.S. 564

Majority

p. 564

In re WHITE.

(Supreme Court, Appellate Division, Second Department.

June 3, 1904.)

Headnote

1. Appeal—Final Ordeb.

An order directing the resumption of certain payments by the guardian of an infant’s property to the guardian of his person is not an order determining an action or a special proceeding, within Code Civ. Proc. § 190, and Const, art. 6, § 9, authorizing appeals to the Court of Appeals from such orders.

Appeal from Special Term, Kings County.

Application by Josiah J. White, as guardian of the person of Frederic Hall White, an infant, against the Long Island Loan & Trust Company, as guardian of the infant’s property, for the payment of funds for the support of the infant. An order directing such payment was granted, and, from an order granting a motion for a stay of proceedings pending appeal to the Court of Appeals from the former order, applicant appeals. Reversed.

Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.

Alfred R. Page, for appellant.

George S. Ingraham, for respondent.

By an order of the Supreme Court, the respondent, the guardian of the infant’s property, had been relieved from the payment of certain monthly allowances to the appellant as guardian of the person, and directed to pay them directly to the ward. Subsequently this order was vacated, and an order granted directing the resumption of the payments by the respondent to the appellant. An appeal was taken to this court from the latter order, and resulted in an affirmance upon the argument. In re White (Sup.) 81 N. Y. Supp. 858 . The order now appealed from grants the respondent’s motion for a stay of proceedings under the order so affirmed, and under the order of affirmance, pending an appeal from the latter to the Court of Appeals by the respondent.

No allowance of such appeal has been granted by this court, and the order is not appealable to the Court of Appeals as matter of right. Const, art. 6, § 9; Code Civ. Proc. § 190; Van Arsdale v. King, 155 N. Y. 325 , 49 N. E. 866 ; N. Y. Security Co. v. Saratoga G. & El. Co., 156 N. Y. 645 , 51 N. E. 297 ; City of Johnstown v. Wade, 157 N. Y. 50 , 51 N.

p. 565

723 ; Guarantee Trust Co. v. P. R. & N. E. R. R. Co., 160 N. Y. 1 , 54 N. E. 575 . It follows that it was improper to stay proceedings under the order of affirmance, and that the order granting such stay should be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.

Cases cited

Van Arsdale v. King 155 N. Y. 325 N.Y. 1898-03-15 p. 564
New York Security & Trust Co. v. Saratoga Gas & Electric Light Co. 156 N. Y. 645 N.Y. 1898-10-04 p. 564
City of Johnstown v. Wade 157 N. Y. 50 N.Y. 1898-10-18 at 51 p. 564
In re Small 158 N. Y. 128 N.Y. 1899-01-24 p. 564
Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England Railroad 160 N. Y. 1 N.Y. 1899-10-03 at 54 p. 565