Fischer v. Briante

6 A.D.2d 814, 175 N.Y.S.2d 301, 1958 N.Y. App. Div. LEXIS 5557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 1958
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the Civil Practice Act

for an order directing the building inspector of the Town of Eastchester to issue a building permit, the appeal is from an order denying a motion to dismiss the petition pursuant to the provisions of section 1293 of the Civil Practice Act. Appeal dismissed, without costs. The appeal was taken from an intermediate order without obtaining permission of the Special Term as required by section 1304 of the Civil Practice Act. The right to appeal was not conferred by a subsequent order made by the Special Term purporting to grant such permission. The notice of appeal, when served, was a nullity and could not be validated retroactively (Matter of Cohen v. Cocoline Prods., 3 A D 2d 711). The fact that the subsequent order was entered upon consent is immaterial. The appellate jurisdiction of this court is entirely statutory, and an appeal may not be taken in the absence of statutory authority therefor (Johnson v. International Harvester Co., 236 App. Div. 618, 620; Matter of Grand Jury of County of Kings [Reardon], 278 App. Div. 206, 210). Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.