Empire City Racing Ass'n v. National Fair & Exposition Ass'n

167 A.D. 126, 152 N.Y.S. 833, 1915 N.Y. App. Div. LEXIS 7448

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1915
• Status: Published

Opinions

Jenks, P. J.:

The plaintiff appeals from an order of the Special Term that denies a motion for a preference in an action of ejectment when the right depended upon facts which did not appear in the pleadings or other papers upon which the cause is to be tried. I think that the order is not appealable. (Code Civ. Proc. § 793; Nichols N. Y. Pr. 3635.) Although the said statute reads, “Such an order is not. appealable,” I think that the Legislature intended to deny the right of appeal whether the application for such an order was granted or refused. Qui hceret in litera, hceret in cortice. If such an order is granted and yet an appeal lies, then the very appeal might defeat the preference. If such an order is denied and yet an appeal lies, then the appellate court would be authorized to interfere in a matter of discretion in the regulation of the trial calendar, which must be determined not only by the merits of the particular case, but by the relative rights of other causes, of which the appellate court would be ignorant. If such an order seems ill-advised, then the said statute prescribes procedure of vacation. If the application is denied then there is no substantial right affected that would justify provision for an appeal, as the matter relates to the discretion of the trial court in determining the but rightful relative place of a cause upon its calendar. The principle that denies the right of appeal is that which commits to the trial court, in matters of discretion, the control of its calendar. As Van Brunt, P. J., said in Riglander v. Star Company (98 App. Div. 101, 104; affd., 181 N. Y. 531): “One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs.” I do not find that this question of practice has been raised or discussed in cases wherein the appellate court has entertained the appeal.

I vote to dismiss the appeal, with costs.

Carr, Rich and Putnam, JJ., concurred; Burr, J., read for affirmance.