Carling v. Purcell

Plaintiff sought to appeal to this court from a judgment of the general term of the city court of New York which affirmed a judgment for defendant. To that end he served his notice of appeal, but did not give the security required to perfect the appeal by § 1341 of the Code of Civil Procedure before its amendment by chap. 450, Laws of 1890. Defendant thereupon, under the provisions of rule 11 of the special rules, applied to this court at special term, and on notice to plaintiff, for

Section 1341 of the Code of Civil Procedure, as originally enacted, see chap. 448, Laws of 1876, provided that upon an appeal to the supreme court from an inferior court security must be given to render it effectual, and the security intended "is the same as provided for in case of an appeal to the court of appeals. Code Civ. Pro., § 1326; Lane v. Hun bert, 16 Daly, 186 ; 31 St. Rep., 277 . Sections 3191-3194 regulate appeals from the city court of New York to this court, and § 3192 declares that titles first and third of chapter twelfth of the act of 1880, chap. 178, comprising §§ 1293-1323, 3140-1345, shall be applicable to such appeals except as §§ 3193 and 1394 may otherwise prescribe. By § 7, chap. 450, Laws of 1890, § 1341 of the Code of Civil Procedure was so amended as to dispense with security to perfect an appeal to the supreme court from an inferior court, and the query is whether, or not, this amendment applies to appeals from the city court of New York to this court.

. It is a rule which governs the interpretation of statutes that a statute which expressly, or by necessary implication, adopts another, must be deemed to have incorporated the statute adopted ipsissimis verbis, and that future additions to or modifications of the latter are not included in the adoption, unless a contrary intention is clearly manifested. Sutherland on Statutory Construction, § 257; Endlich on Interpretation of Statutes, § 85, p. 115 ; Knapp v. Brooklyn, 97 N. Y., 520 ; Matter of Main street, etc., 98 id., 454. Section 1341 .of the Code of Civil Procedure, at the time of the enactment of § 3192 (May 6,1880), required security to render the appeal effectual, and as the last mentioned section contains nothing from which an intention to include future additions to or modifications of § 1341 in the adoption is inferable on apparent, the rule of interpfetation referred to precludes the application of the amendment which dispenses with the security to appeals from the city court of New York to this court. Hence, to render such an appeal effectual security must still be given.

Pursuant to the provisions of § 1347 of the Code of Civil Procedure, an appe'al to the general term of a superior city court, of which this court is one, § 3343, sub. 1, from an order made at special term, can only be taken when the order (1) grants, refuses, continues or modifies a provisional remedy, (2) grants or refuses a new trial, (3) involves some part of the merits, (4) affects a substantial right, (5) in effect determines the action and prevents a judgment from which an appeal might be taken ; or (6) determines a statutory provision to be unconstitutional. Clearly, the the oi’der dismissing the appeal is not among the cases provided for, unless it may be successfully claimed that it affects a substantial right. But the effect of the omission to give the required security was to render the appeal ineffectual and the notice of appeal to this court a nullity. Raymond v. Richmond, 76 N Y., 106 ; Benedict & Burnham Mfg. Co. v. Thayer, 82 id., 610. No appeal was pending; the order dismissing it was un

The appeal should, therefore, be dismissed, with costs.

Daly, Oh. J., and Pryor, J., concur.