Cornell v. Burhans — 94 N.Y.S. 463

Majority

p. 463

In re SOOP. CORNELL v. BURHANS.

(Supreme Court, Appellate Division, Third Department.

June 29, 1905.)

Headnote

1. Appeal—Special Proceedings—Appeal to Appellate Division.

Code Civ. Proe. § 1356, authorizing an appeal to the Appellate Division from an order affecting a substantial right, made in a special proceeding at a Special Term or Trial Term of the Supreme Court, or by a justice thereof, and section 1357, authorizing an appeal from such an order, made by a court of record possessing original jurisdiction in a special proceeding instituted in that court, pursuant to a special statutory provision, but providing that the section does not apply where an appeal from an order to a court other than the Appellate Division is expressly given by statute, do not allow an appeal to the Appellate Division from an order of the County Court reversing a final order in a special proceeding, instituted before a justice of the peace or City Court.

2. Same.

Code Civ. Proc. § 2260, authorizes an appeal (in a summary proceeding) from a final order, made as prescribed in title 2, c. 17, of the Code, to the same court as where an appeal is taken from a judgment of the court of which the judge is the presiding officer. Section 2249 defines the final order prescribed in the title specified as a final order made upon the trial of a summary proceeding. Held, that the sections give no right of appeal to the Appellate Division from an order of the County Court reversing a final, order of an inferior court in summary proceedings.

Appeal from Ulster County Court.

Summary proceeding by Henry C. Soop, as agent and attorney of the estate of Thomas Cornell, against Webster H. Burhans. From an order of the County Court reversing a final order made by the City j'udge of the city of Kingston, petitioner appeals.

Dismissed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

H. H. Flemming, for appellant.

John D. Eckert, for respondent.

This appeal should be dismissed. The right to appeal to the Appellate Division in a special proceeding is given by sections 1356 and 1357 of the Code of Civil Procedure, which are as follows:

“Sec. 1356. An appeal may be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made in a special proceeding, at a Special Term or a Trial Term of the Supreme Court; or made by a justice thereof in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge and transferred to or continued before him.

“Sec. 1357. An appeal may also be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made by a court of record, possessing original jurisdiction or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge and transferred to or continued before the judge who made the final order. But this section does not apply to a case where an appeal from the order to a court other than the Appellate Division of the Supreme Court is expressly given by statute.”

p. 464

An appeal is not allowed thereby to the Appellate Division from an order of the County Court, made upon an appeal from an order in a special proceeding instituted before a justice of the peace or the City Court of the city of Kingston. Matter of Rafferty, 14 App. Div. 55 , 43 N. Y. Supp. 760 . Section 2260 of the Code of Civil Procedure authorizes an appeal from a final order made as prescribed in title 2,'c. 17, of the Code of Civil Procedure, to the same court within the same time and in the same manner as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding officer, and with like effect. By its express terms the right to an appeal is given from the final order prescribed in that title. The final order prescribed in that title is defined in section 2249 of the Code of Civil Procedure, and is the final order made upon the trial. No right of appeal is given by said section 2260 from the order of reversal in the County Court in this proceeding. One appeal only is contemplated in a summary proceeding unless upon a final determination of this court upon an appeal from a final order made in a proceeding instituted- before a county judge a further appeal is allowed to the Court of Appeals as provided by section 2261 of the Code of Civil Procedure.

The appeal should be dismissed, with $10 costs and disbursements. All concur.