Hooper v. Beecher — 14 N.Y. St. Rep. 16

Majority

p. 16

Nathaniel Hooper et al., Resp’ts, v. Charles McCulloch Beecher et al., App’lts.^[1]

(Court of Appeals,

Filed March 6, 1888.)

Headnote

1. Practice—Appeal—Order denying re-argument not appealable.

The number of arguments which an appeal is entitled to and may have, is in the discretion of the comt where the appeal is pending. An order of the general term of the supreme court denying a re-argument is not reviewable in the court of appeals.

3. Same—Who may appeal.

A party in whose favor a judgment is rendered or an order made cannot be aggrieved by it, and Las no right of appeal.

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3 Same—Motion to dismiss as frivolous—Office of.

The court of appeals will not allow a motion to dismiss an appeal as frivolous to be used as a short cut for litigants to gain an earlier hearing by it than they are entitled to have by the rules.

Motions by the respondent to dismiss appeals taken by the appellants from the judgment in -this action, and from two orders of the supreme court, general term, first department, one of which denied a motion for re-argument of the appeal, and the other of which modified a previous order of the general term granting costs against the defendants and making the costs payable out of a fund in the hands of an assignee, one of the defendants.

Franklin Bien, for resp’t.

—The order of the general term denying re-argument is not reviewable here. The number of arguments which an appeal is entitled to and may have, is in the discretion of the court where the appeal is pending. Fleischmann v. Stern, 90 N. Y., 110 .

The order of the general term modifying its previous order and making the payment of costs a lien upon the funds in the hands of one of the defendants as assignee, was granted upon the appellants’ own motion. Thereby they obtained the precise relief they had made application for A party in whose favor a judgment is entered or an order made, cannot be aggrieved by it and he is therefore in no position to claim the right of appeal.

As to the motion to dismiss the appeal from the judgment as frivolous, it should be denied. The action was instituted by the plaintiffs as judgment creditors to set aside an assignment made by the defendants comprising the firm of Charles McCulloch Beecher & Co., for the benefit of their creditors, to defendant Bartlett as assignee. The court at special term held the assignment to be invalid inasmuch as the instrument was signed by the firm name and it did not appear that the act of the partner who executed it under the firm name, was authorized by, assented to, or acquiesced in by the other parties. The judgment of the special term was finally affirmed by the general term for reasons stated in their opinion. From that judgment an appeal was taken to this court and is now pending.

The judgment in question is final, and therefore appeal-able. Thé legal questions involved are the validity or invalidity of an assignment for the benefit of creditors made and executed as above mentioned, and these questions are made to depend upon the consideration of the pleadings and the proofs. Those questions should be discussed upon the argument of the appeal when reached in its regular order

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upon the calendar. To dispose of such questions on a motion to dismiss for alleged frivolousness is to dispense with the rules prescribed for the orderly disposition of appealed causes.

We cannot countenance such a course, and thereby open up a short cut for the resort of litigants anxious to gain an earlier hearing from us than they are entitled to have by the rules.

The motion to dismiss the applicants’ appeals from the orders of the general term is granted, and the motion to dismiss the appellants’ "appeal from the judgment herein is denied ; but under the circumstances no costs are awarded, to either party.

All concur.