p. 564Smith A. Brooker et al., App’lts, v. John Filkins, Resp’t.(New York Common Pleas, General Term,Headnote
1. Appeal—Dismissal.A motion to dismiss an appeal cannot be entertained at the specinl term. 3. Same—Undertaking.
Where a party has served his notice of appeal in time, but has omitted to give an undertaking, the court in, or to, which the appeal is taken, may, in its discretion, permit the omission to be supplied.
Application therefor may be made at the special term of the appellate court.
Appeal from an order of the special term of this court, granting the defendant’s motion to dismiss the plaintiffs’ appeal from a judgment and order of the general term "of the city court, on the ground that the appeal had not been perfected by the giving of an undertaking.
Edward Hassett for app’lts; Abner C. Thom,as for resp’t.
Appeals from the city court are to be taken to the court of common pleas for the city and county of New York (Code § 3191). The appeal must be heard at a general term of the appellate court ( § 3193.) The special term, therefore, has no power to dispose of the appeal. A motion to dismiss upon the ground that the appeal had not been perfected, or for any other reason, cannot be entertained at the special term.
Where a party has served his notice of appeal in time, but has omitted to give an undertaking, the court in, or to, which the appeal is taken, may, in its discretion, premit the omission to be
p. 565supplied (Code § 1303). The application for such permission may be made at special term of this court, for the court of common pleas is the court in or to which the appeal is taken (3191), and all applications to the Court must be made in the first instance at the special term, unless by staute or rule it is provided otherwise. All the powers of the court, except the hearing of appeals, are exercised by the special term.
In this case, therefore, upon proper proof of the facts the special term may entertain the plaintiffs’ application for leave to supply the omitted undertaking, which is necessary to perfect their appeal, Carling v. Purcell, 22 N. Y. Supp. 558 ; 3 Misc. R. 55; 51 St. Rep., 835 , and opportunity will be afforded to make that motion since the order dismissing the appeal will have to be reversed. Such an order, if authorized in any event, can be made only at the general term of this court.
Order reversed without costs.
All concur.