Warner v. Henderson

Headnote

A judgment of a County Court affirming a final order or judgment of a justice of the peace in summary proceedings is appealable to the General Term -* Code of Civil Procedure, sea.' 2260 — when an appeal lies under section 1340 of the said Code.

Appeal from a judgment of the. Orleans County Court, affirming a final order or determination made by a justice of the peace in summary proceedings to remove a tenant, commenced in October, 1879.

The court at General Term said: “The respondent’s counsel insists that the judgment is not appealable. Section 2260 of the new Code, which is contained in the title relating to ‘summary proceedings to recover the possession of real property,’ provides -that ‘ an appeal may be taken from a final order made as prescribed in this title, to the same court, within the same time, and'in the same manner as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding officer, and with like effect, except as otherwise prescribed,” etc., this case not being within the exception. It is contended that the section cited provides for a single appeal only, and does' not contemplate a review of the judgment of the appellate court, and in that respect follows the act of 1819, which gave an appeal from the determination of a justice of the peace in summary proceedings to the County Coürt, and provided that the decision of the County Court on such appeal should be final. (Laws 1819, chap. 193, § 5, sub. 2; Deuel v. Dust, 21 Barb., 138 .) The conclusive answer to that position is that the words making the decision of the appellate court final are omitted in section 2260. That the omission was intended to work a change in the practice is apparent from the fact that the next section of the Code speaks of an appeal to the Court of Appeals from a final determination of the General Term of the Supreme Court or of a superior city court. (Sec. 2261.) The General Term has only an appellate jurisdiction in summary proceedings.

“ It is also argued by the respondent that if section 2260 is to be construed as allowing an appeal from the determination of a County Court, where the same is allowed upon its determination in an

appeal from a justice’s judgment, yet this matter is not appealable, the respondent’s position being that the decision of a County Court whether a judgment or order, if made in an action originating in a Justices’ Court, is not appealable to this court. That idea is suggested by the language of section 1340 of the Code, which gives an appeal to .the Supreme Court from a final judgment rendered by a County Court, or by any other court of record possessing general jurisdiction. The words “possessing general jurisdiction” are simply descriptive of the courts of record, other than county courts, from whose judgments an appeal may be taken<to the Supreme Court. They do not limit the right of appeal to judgments rendered by such courts in the exercise of their original jurisdiction. The case of Fish v. Thrasher ( 21 Hun, 15 ), and other like cases cited by the respondent’s counsel, holding that an appeal will not lie to the General Term from an order made by a County Court in an action originating in a Justices’ Court, proceeded upon the peculiar language of section 1342 of the Code which limited such right of appeal to an order made by such court in an action brought in that court. The section has since been amended by extending the right of appeal to orders made in actions brought in such court, or taken by appeal to such court. (Laws 1881, chap. 135.) We think the appeal will lie, and we proceed to consider the case on its merits.”