Butt v. Frenche

15 How. Pr. 537

• Court: New York Court of Common Pleas
• Decided: March 15, 1858
• Status: Published

Opinion

Brady, Judge.

Appeals may be taken from the judgment entered by the direction of a single justice of the marine court, to the justices thereof, at a general term, in the same manner and with the like effect, as appeals in the supreme court, from the decision of a single judge to the general term. (Laws 1853, p. 1165.) The manner relates to the mode of proceeding in effecting an appeal, the notice and security to be given; the effect relates to consequences produced by the appeal, as under what circumstances it shall operate to stay proceedings. (The People ex rel. Debenetti agt. The Clerk of the N. Y. Marine Court, 13 How. 260.) The appeal from the judgment of a single justice to the general term of the supreme court, is regulated by section 348 of the Code,- and relates exclusively- to judgments. By that section, it is expressly provided that such appeal when taken, does not stay the prceedings, unless security be - given as upon an appeal to the court of appeals. The defendant admits that- on the appeal taken to the general term of the marine court, no security was given, and it is, therefore^ clear that he is not entitled to any stay of proceedings in this court, on the judgment acquired by filing a transcript from the court below. {Code, § 68.) It also appears from the- moving'papers, that the appeal to the general term of the marine court, was from an order, and if by this is meant some proceeding other than a judgment by a single justice, the appeal was improperly taken. The appellate jurisdiction of the general term of the marine court, is confined-do-judgments; (Statute-1853 ; The People agt. The Clerk of the Marine Court; Code, § 348, supra ;) and a judgment is defined by the Code, (§ 245,) to be the final determination of thé rights of the parties in the action; while by section 400, every direction of & court or judge, made or' entered in writing, and hot included in a judgment, is denominated an order. Stay, on the ground that appeal has been taken, refused for the reasons stated. ' ’