McKean v. Adams — 58 N.Y. St. Rep. 59

Majority

p. 59

Bernard S. McKean, App’lt, v. Charles H. Adams, Resp’t.

(New York Common Pleas, General Term,

Filed March 15, 1894.)

Headnote

Appeal—Noe-appealable.

An order of the general term of the city court vacating the case on appeal and the settlement thereof on the ground of irregularity, is not appeal-able to the court of common pleas.

F. G. Bullard (F. F. Bullard, of counsel), for app’lt; Booraem, Hamilton & Beckett ( William H Hamilton and Henry M. Ward, of counsel), for resp’t.

The appeal will have to be dismissed because the general term of the city court of which appellant complains is not appealable to this court under any provision of the Code. It is an order vacating his case on appeal and vacating the settlement thereof, and was made because the settlement of the case was procured irregularly. The appellant is not thereby deprived of his appeal from the judgment. He still-has his remedy. The facts are these: He appealed in the city court from a judgment of the trial term and served a case upon appeal. It was returned for alleged irregularities, and he subsequently applied to the justice who tried the cause for a settlement of the case upon the ground that no amendments had been served. The application was granted and the case settled and filed and notice thereof given to the respondents, who immediately moved before the justice upon affidavits to vacate the order settling the case and ordering it on file and to vacate the case. The motion was granted, manifestly because the appellánt had not disclosed, when he applied to the judge for an order settling the case and ordering it on file, that it had been returned by the respondents. The judge very properly vacated his order, leaving the appellant to his

p. 60

remedy by motion to compel the respondent to receive the case. . That he can make now, and no substantial right is affected by the order appealed from.

The question determined by the city court was a minor point of practice of the correctness of which they are the judges, and does not affect the merits. People v. N. Y. Cent. R. R. Co., 29 N. Y., 421 . The question whether the action to vacate the order and case should have been made at a special term or before the judge who settled the case is immaterial, as the order is not appealable in any respect for the reasons stated.

Appeal dismissed, with $10 costs and disbursements to respondent.