Majority
p. 525FROMME v. POERSCHKE. (Supreme Court, Appellate Term. October 27, 1905.) Argued before SCOTT, P. J., and BISCHOFF and FITZGERALD, JJ.
Headnote
Appeal—Decisions Reviewable—Appealable Orders.An order declaratory of the undisputed fact that defendant had abandoned by neglect his right to serve a case on appeal, being in effect an order declaring that he had waived his right within court rule 33, does not affect any right, and is not appealable.
Appeal from City Court of New York.
Action by Herman Fromme against Edward R. Poerschke. From an order denying a motion to vacate an order declaring the right of defendant to make a case on appeal “to be, and the same hereby is, deemed and declared to be abandoned,” defendant appeals.
Dismissed.
William R. Hill, for appellant.
Fromme Bros., for respondent.
The order appealed from involves no part of the merits and affects no substantial right. It is simply declaratory of the fact, which is not disputed, that the defendant by his neglect to serve a case on appeal had waived or abandoned his right to do so; for there is no significant difference between the wprd “abandoned,” used in the order, and the word “waived,” used in rule 33. The order has not in any wise affected the right of either party, and the worst that can be said of it is that it was unnecessary.
As it does not affect any right, it is not appealable, and the appeal must be dismissed, with $10 costs and disbursements. All concur.