Maas v. Nankeville — 97 N.Y.S. 980

Majority

p. 980

MAAS v. NANKEVILLE.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

Courts—Municipal Courts—Appeal—Attachment Proceedings.

Under Municipal Court Act, Laws 1902, pp. 1562, 1563, c. 580, §§ 253-257, enumerating: the only orders appealable, and making no mention of orders in attachment proceedings," no appeal lies from an order denying a motion to vacate an attachment.

Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Martin Maas against William E. Nankeville. From an order denying a motion to vacate an attachment, defendant appeals.

Dismissed.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

Franklin Bien, for appellant.

In an action for work, labor, and services and materials furnished, the plaintiff gave evidence of an agreed price of $300, but no evidence of reasonable value. The justice awarded him $225 damages. The record shows that this must have been given on the theory of a quantum meruit. Such being the case, I think the amount was too great. According to the evidence, it should not have been more than $200 at the utmost. The damages should be reduced to that amount, and, as thus modified, the judgment should be affirmed, with costs.

The appeal from the order denying the motion to vacate the attachment cannot be entertained. Under Municipal Court Act, Laws 1902, p. 1648, c. 580, the only orders appealable are those enumerated in sections 253-257 thereof (Leavitt v. Katzoff, 43 Misc. Rep. 26 , 86 N. Y. Supp. 495 ; Smith v. Ely, 46 Misc. Rep. 458 , 92 N. Y. Supp. 310 ), and neither of these sections makes mention of orders in attachments proceedings.

Judgment modified by reducing the amount of the recovery to the sum of $200, and, as modified, affirmed, without costs.

Appeal from order dismissed, with $10 costs. All concur.