Hanover Fire Ins. Co. v. . Tomlinson

58 N.Y. 215, 1874 N.Y. LEXIS 490

• Court: New York Court of Appeals
• Decided: September 22, 1874
• Status: Published

Opinion

Rapallo, J.

Conceding that it was discretionary with the ' court at Special Term whether or not to grant leave to the plaintiff to bring an action upon the alleged judgment, yet we think that the General Term erred in dismissing the appeal from the order made at Special Term granting such leave. We have repeatedly held that, although this court is limited in the review of orders to. such as do not involve any question of discretion, yet that no such limitation is imposed upon the General Term in reviewing orders made at Special Term; and that where an order which affects a substantial right is made at Special Term the party appealing therefrom to the General Term is entitled to have it reviewed .there, notwithstanding that it involves questions of discretion ; and that a refusal by the General Term to entertain the appeal, and pass upon its merits, is an error of law reviewable in this court. (People v. N. Y. C. R. R., 29 N. Y., 418; Matter of Duff, 10 Abb. Pr. [N. S.], 416; Howell v. Mills, 53 N. Y., 322.)

We are of opinion that the General Term should have reviewed the order upon its merits, and that the dismissal of the appeal was, therefore, erroneous. The case discloses facts which might have justified a reversal of the order made at" Special Term, and we cannot say that such would not have been the result had the General Term entertained the appeal and considered the case upon its merits. It is, to say the least, questionable whether there was any judgment upon which an action could properly be founded.

The order of dismissal should be reversed, with costs, and the case remanded to the Supreme Court to hear and determine the appeal.

All concur.

Ordered accordingly.