Hawkins v. Mayor of New York

5 Abb. Pr. 344

Opinion

Hoffman, J.

—The application is to stay a sale of property seized upon an execution issued on a judgment in the District Court for the third judicial district, against the defendants.

Judgment was recovered in such court before Mr. Justice Meech on July 27, 1857, in favor of the plaintiff, for the sum of $73.75. Notice of appeal to this court was thereupon given, and the provisions of section 354 of the Code, as amended in 1857, appear to have been fully complied with.

The appeal then being perfected, the cause may be treated as in this court for the purpose of being here reviewed, if this court possesses any jurisdiction. But the requirements of the statutes have not been complied with, so as to make the appeal a stay of proceedings.

Sections 355, 356, and 357 of the Code are in force. In order to stay the issuing of an execution, or proceedings under it, if issued, the undertaking therein prescribed must be approved by the court below. It appears from the papers before me that the justice refuses or avoids approving the undertaking. A mandamus has been obtained commanding him to show cause why he should not approve it.

The mode of obtaining a stay of proceedings is regulated by the statute, and must be strictly pursued. The subject in connection with appeals of this nature, is fully discussed in Smith a. Allen (2 E. D. Smith’s C. P. R., 260).

This court, even if it has jurisdiction of the appeal, cannot be justified in staying proceedings upon any other grounds than those prescribed by the statute.

But if this was not a sufficient answer to the application, I should be compelled to deny it upon the ground that this court has no jurisdiction of appeals from the district courts of this city.

I shall not attempt to state the course of reasoning which has led me to this result, because the point has been argued before the general term at its July session, and will receive there a full investigation, as well as an authoritative decision.

Footnotes

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* If I am right, my reason will be unimportant; and if wrong, the present appeal will be heard.

Motion denied.

The case referred to is that of Day a. Swackhammer, which came before the general term of the Hew York Superior Court on a motion to dismiss an appeal taken from a judgment of the First District Court of the city of Hew York.

The judgment appealed from in that case was recovered June 24,1857, by Hoah S. Day, plaintiff, against Conrad Swackhammer, defendant, and was for $175 and costs. The defendant appealed, and the plaintiff moved to dismiss the appeal.

Thomas Stevenson, for the motion, contended that the Superior Court had no jurisdiction of the appeal; that though such jurisdiction was conferred by the act of April 13, 1857 (1 Laws of 1857, 727, ch. 341, § 76), it was taken away by the act of April 17, 1857, amending section 352 (with other sections) of the Code (2 Laws of 1857, 560, §21).

JET. D. Birdscdl, in opposition, contended that under the two acts above mentioned, the Superior Court had jurisdiction of appeals from judgments rendered by justices of the district courts in civil actions, and that the Common Pleas had jurisdiction of appeals from judgments rendered by such justices in special proceedings brought before them, acting as officers out of court, and not as a court,— such as summary proceedings to recover possession of land.

Bosworth, J., on October 10th, announced the decision of the court dismissing the appeal. He stated that the judges of the Common Pleas and justices of the Superior Court had consulted together on the subject, and had come to the conclusion that the act of April 17th, 1857, in effect abrogated so much of the act of April 13th as gave the Superior Court power to entertain appeals from judgments rendered hy a justice of one of the district courts of the city, and conferred that power on the Common Pleas.

He also stated that he was authorized hy all the judges of hoth courts to state their concurrence in this conclusion.

Ho written opinion was rendered.

On the same subject consult Davis a. Hudson, Ante, 61; The People on rd. Morris a. Willis, Ante, 205.