WHITFIELD v. BROADWAY & SEVENTH AVENUE RAILROAD CO.

WHITFIELD v. BROADWAY & SEVENTH AVE. R. R. CO. N. Y. Common Pleas, General Term; June, 1890. 1. Appeal from city court of New York.] An appeal does not lie to the court of common pleas from an order of the general term of the city court of New York affirming a judgment. Such order is of an interlocutory nature and the appeal should be from the judgment of affirmance. The order is not the “ actual determination ” within Code Civ. Pro. § 3191, regulating appeals from the city court. 2. The same ; notice of appeal.] A notice of appeal which is in terms from the “ actual determination ” of the city court, the printed case containing the order but not the judgment of affirmance, operates only as an appeal from the order, and confers no authority on the appellate court to review the proceedings. Appeal from the city court of New York. The plaintiff recovered a judgment at the trial term of the city court in an action for personal injuries. On appeal by defendant, the judgment was affirmed by the general term of the city court. Defendant thereupon served a notice of appeal “ to the general term of the court of common pleas for the City and County of New York, from the actual determination made at the general term of this court, entered in this action on January 31, 1890, affirming the judgment entered in this action,” etc." The printed ease contained the general term order for affirmance, but no judgment of affirmance. Joseph Kunzman (Root & Clarke, attorneys), for defendant and appellant. Louis F. Doyle for plaintiff and respondent. I. The attempted appeal by the defendant is ineffectual. The notice of appeal is in terms “ from the actual determination made at the general term of this court, entered in this action on the 31st day of January, 1890, affirming the judgment entered in this action on November 19, 1889, in favor of the plaintiff and against the defendant for $507.98 damages and costs, and from each and every part of said determination.” It does not specify what order or judgment is referred to, or what “ actual determination ” is sought to be reviewed. The case contains the general term order of affirmance, but not the final judgment of affirmance. The notice must therefore be construed to refer to the only “ actual determination ” presented by the case, viz.: the order of affirmance. Such order is clearly not appealable (Bamberg v. Stern, 76 N. Y. 555; Code Civ. Pro. § 3191). The notice of appeal must be to the effect that the appellant appeals from the “ judgment or order or from a specified part thereof ” (Code Civ. Pro. § 1300, which is made applicable to this appeal by section 3192.) A notice of appeal from an “ actual determination,” using the language of the first sentence of section 3191, is insufficient. The notice must specifically mention a judgment or order mentioned in one of the three subdivisions of that section. The term “ actual determination ” is generic and includes both judgments and orders, as specifically enumerated in the subdivisions. But the notice of appeal must be specific, and designate some particular judgment or some particular order, and must designate it by its proper name. A general designation of an “ actual determination,” leaving the appellant at liberty to apply it to either judgment or order as he may subsequently choose, is a practice too loose and indefinite to be tolerated in the drafting of a paper, which is the basis of the jurisdiction of the appellate court. In this case, the notice of appeal does not state whether the appeal is from an order or judgment of affirmance. The order is not appealable, and the case does not contain any judgment. It does not appear that final judgment of affirmance has in fact been entered. This is necessary under section 3191, subd. 1. Upon this record this court cannot affirm or reverse a judgment which is not before it. It cannot review the order for affirmance contained in the case, for there is no authority to review such order in this court. The only “ actual determinations ” which are reviewable, are those specified in the three subdivisions of section 3191. Of these, an order affirming a judgment is not one. The appeal must therefore be dismissed. See also Derleth v. De Graff, 104 N. Y. 661* it was held, in Lezensky v. Supreme Lodge Knights of Honor, N. Y. City Ct., Sp. T., June, 1890, that an appeal will lie to the court of common pleas from an order of the general term of the city court granting a new trial; and in such case it is not necessary to enter a judgment of reversal. The opinion was as follows : Morris Qoodh,a/rt, for motion. Charles Sleekier, opposed. McAdam, Ch. J. An appeal maybe taken to the court of common pleas from “ an order ” made by the general term of the city court, granting a new trial. No formal judgment need be entered, the order being in the nature of a final determination {Code, § 3191; Bamberg v. Stern, 76 N. 7. 555). The costs awarded were “ to abide the event,” so that there is nothing for which a judgment can be entered. The case is unlike Whitfield ®. Broadway & 7th Ave. R. R. Co. [reported above] wherein a judgment for the plaintiff was affirmed, with costs, and a new judgment for costs was entered on the order of the general term. There the order was preliminary to the final judgment subsequently entered, and the defendant erroneously appealed from the order instead of the judgment. Motion to compel plaintiff to enter judgment on the order of reversal denied, without costs. Upon a motion for a re-argument, the following decision was rendered, June 17, 1890. McAdam, Ch. J.—The case of Pharis ®. Gere, 112 N 7. 408, does not change the practice as laid down in the former decision. It holds that an appeal may be taken from “ the order ” awarding a new trial, and on that appeal the judgment of reversal may be reviewed. Such an order embraces two subjects. The part that reverses the judgment of the trial term is in the nature of a judgment by the general term, and that part which awards a new trial, although interlocutory in form, is final in its nature, where the defeated party appeals and gives a stipulation for judgment absolute. Motion for re-argument denied. This practice of appealing from the order granting a new trial is sanctioned by Code Civ. Pro § ISIS, which provides that an appeal cannot be taken from a judgment of reversal, “ but upon an appeal from the order granting a new trial, taken as prescribed by law, the judgment of reversal must also be reviewed.” [MAJORITY — Bischoff, J.] Bischoff, J. The appeal herein is from an order of the general term of the city court of New York affirming a judgment of that court and not from the judgment of affirmance. Such an order is not appealable (Mehl v. Vonderwulbeke, 46 N. Y. 539; Ferris v. Aspinall, 10 Abb. Pr. N. S. 137; Hollister Bank v. Vail, 15 N. Y. 593). Section 3191 of the Code of Civil Procedure, which regulates appeals from the general term of the city court to this court, and upon the provisions of which the jurisdiction of this court to review the proceedings of the city court depends, does not change the general practice. The actual determination referred to in that section comprehends either judgment or final order, and an order is not final .where it is but the preliminary step towards perfecting the determination of the court, upon a pending controversy. “ In the sense of the Code an order is deemed final which closes the subject matter to which it relates, or it is not final when it is a preparation to other actions ” (Clark v. Goodrige, 44 How. Pr. 234). An “actual determination” in an action is the judgment rendered therein and not an order for judgment. And this applies as well to the judgment entered upon the order of a general term, as it does to a judgment in the first instance. Subdivision 1 of section 3191 above referred to specifically permits an appeal to this court from a final judgment upon an appeal to the general term of the city court, and the general provisions of that section, allowing an appeal from an order afEecting a substantial right or involving some part of the merits are not controlling upon the specific provision for an appeal from a final judgment. An order for such a judgment is of an interlocutory nature, and an appeal from the judgment also brings up the order for review. The case is in all respects similar to an order for judgment on demurrer. In such a case it is not the order which determines the action, but the judgment entered in accordance with the directions of the order. And the appeal lies from the judgment and not the order (Elwell v. Johnson, 74 N. Y. 80). The omission to appeal from the judgment of affirmance upon the order of the general term of the city court leaves this court without authority to review its proceedings, and this appeal must therefore be dismissed with costs. Labbemoee, Oh. J. and Daly, J., concurred.