Bell v. Eastman

Appellate Terms of the Supreme Court of New York

Bell v. Eastman

85 Misc. 18, 147 N.Y.S. 47

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1914

StatusPublished

This text of 85 Misc. 18 (Bell v. Eastman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bell v. Eastman, 85 Misc. 18, 147 N.Y.S. 47 (N.Y. Ct. App. 1914).

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Opinion

Lehman, J.

The plaintiff appeals from an order denying her motion to amend “ the judgment and all other papers in this action so that the name of the defendant shall read Max Eastman, also known as Max Eiseman.” The motion was made almost a year after the entry of judgment.

Whatever power the court may have to make such an amendment is derived from section 723 of the Code of Civil Procedure. See Corn v. Heymsfeld, 75 Misc. Rep. 478. We have frequently had occasion to point out that the jurisdiction of this court to review the judgment and orders of the Municipal Court is wholly statutory, and where the order appealed from is not one of those enumerated in section 257 of the Municipal Court Act the appeal must be dismissed. It is quite clear that the order now under consideration is not one of the orders enumerated in that section.

It is urged that Corn v. Heymsfeld, supra, is authority for the view that an appeal does lie from an order made under section 723 of the Code. In that case, however, the appeal was taken from the judgment and order, and an appeal from a judgment brings up for review an intermediate order which is specified in the notice of appeal, and necessarily affects the judgment. Mun. Ct. Act, § 310. The decision in that case provides for the affirmance of the [20]*20judgment- though the only point considered was the validity of the order which necessarily affected the judgment.

It follows that the appeal should be dismissed, without costs.

Seabury and Bijur, JJ., concur.

Appeal dismissed, without costs.

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Lehman, J.

The plaintiff appeals from an order denying her motion to amend “ the judgment and all other papers in this action so that the name of the defendant shall read Max Eastman, also known as Max Eiseman.” The motion was made almost a year after the entry of judgment.

Whatever power the court may have to make such an amendment is derived from section 723 of the Code of Civil Procedure. See Corn v. Heymsfeld, 75 Misc. Rep. 478. We have frequently had occasion to point out that the jurisdiction of this court to review the judgment and orders of the Municipal Court is wholly statutory, and where the order appealed from is not one of those enumerated in section 257 of the Municipal Court Act the appeal must be dismissed. It is quite clear that the order now under consideration is not one of the orders enumerated in that section.

It is urged that Corn v. Heymsfeld, supra, is authority for the view that an appeal does lie from an order made under section 723 of the Code. In that case, however, the appeal was taken from the judgment and order, and an appeal from a judgment brings up for review an intermediate order which is specified in the notice of appeal, and necessarily affects the judgment. Mun. Ct. Act, § 310. The decision in that case provides for the affirmance of the [20]*20judgment- though the only point considered was the validity of the order which necessarily affected the judgment.

It follows that the appeal should be dismissed, without costs.

Seabury and Bijur, JJ., concur.

Appeal dismissed, without costs.

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85 Misc. 18, 147 N.Y.S. 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-eastman-nyappterm-1914.

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