Jones v. Jones — 5 N.Y. St. Rep. 610

Majority

p. 610

Lula V. Jones, Resp’t, v. Lewis Jones, et al, Appl’t.

(Court of Appeals,

Filed January 18, 1887.)

Headnote

Appeal fbom coubt of Common Pleas of New Yobk. — Obdeb hecessaby Code Civ. Pbo., § 190.

An appeal to the court of appeals from a judgment of the general term of the court of common pleas of New York county cannot be taken, where the case originated in the city court of New York, without first obtaining leave from the court of common pleas to appeal as required by Code Civ. Pro. § 190.

Constitutionality of Laws, 1886, Chap. 418.

All the provisions of chapter 418, Laws 1886, are connected as parts of a single scheme and the main purpose of the act, being unconstitutional the incidental provisions must fall.

Motion to dismiss an appeal from a judgment of the general term court of common pleas of New York county, affirming a judgment of the general term of the city court, in favor of plaintiff.

N. W. Lazetr, for motion. E. P. Wilder, opposed.

In this case the defendant took an appeal from the judgment of the general term of the city court to the court of common pleas, where the judgment was affirmed after the passage of chapter 418 of Laws of 1886. From the judgment of affirmance the defendant appealed to this court without first obtaining leave from the court of common pleas to appeal, as required by section 190 of the Code, and the respondent now

moves on that ground to dismiss the appeal. The appellant contends that although the act of 1886 is held to be unconstitutional in so far as it dispenses with an appeal to the court of common pleas, it should still be held valid and effectual in so far as it has the effect of dispensing with the necessity of an order of the court of common pleas allowing an appeal from its judgment.

After giving the point due consideration we have concluded that the main object of the act of 1886 having failed, we should not divide it into parts and sustain the portion which is claimed to obviate the necessity of an order allowing the’ appeal, but that all the provisions are connected as parts of a single scheme, and that the incidental provisions must fall with the failure of the main purpose of the act.

An order allowing the appeal was consequently necessary, and for want of such an order the appeal should be dismissed, without costs.

All concur.