James v. Powell

Appellate Division of the Supreme Court of New York

James v. Powell

30 A.D.2d 340, 292 N.Y.S.2d 135, 1968 N.Y. App. Div. LEXIS 3429

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 11, 1968

StatusPublished

Cited by2 cases

This text of 30 A.D.2d 340 (James v. Powell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James v. Powell, 30 A.D.2d 340, 292 N.Y.S.2d 135, 1968 N.Y. App. Div. LEXIS 3429 (N.Y. Ct. App. 1968).

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Opinions

Per Curiam.

Two appeals are before the court. The first is from an ex parte order dated November 28, 1966. Such orders are not appealable (CPLR 5701, subd. [a], par. 2; Haner v. Van Buren, 240 App. Div. 800). The notice of appeal states that the ex parte order was issued pursuant to a prior order dated November 17, 1966. However, the notice nowhere states that the latter order is being appealed from. The notice consequently fails to bring that order up for review. There being no appeal-able order before the court, the appeal must be dismissed.

The second appeal is from an order entered November 30, 1966, which order denied a motion to vacate the afore-mentioned ex parte order. Such orders are appealable as of right only where the prior order, had it been on notice, would have been appealable as of right (CPLR 5701, subd. [a], par. 3). Here the prior order is the ex parte order. The ex parte order recites the findings and ordering provisions of the order of November 17, 1966, which found the appellant guilty of criminal contempt, directed his fine and imprisonment, and further directed him to surrender to the Sheriff on November 23, 1966; and in the event of his failure to surrender, that an ex parte order may issue to the Sheriff to take him into custody. While the ex parte order repeats the findings of contempt and the punishments therefor, its only effective provision is the direction to the Sheriff to enforce the provisions of the prior order. The prior order not having been appealed, we are bound to assume its validity, so the only questions left on appeal from the ex parte order, had that order been on notice, would be questions as to its form. Significantly, only such questions are raised in the notice of motion to vacate.

Of these questions there are two. The first concerns the completeness of the recitals, which we find to be in order. The second refers to the permission in the order to execute the same on a Sunday. As the defendant has already surrendered to the Sheriff, this question is academic.

The appeal from the order entered November 28, 1966 should be dismissed, without costs and without disbursements.

The order entered November 30, 1966, should be affirmed, without costs and without disbursements.

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Per Curiam.

Two appeals are before the court. The first is from an ex parte order dated November 28, 1966. Such orders are not appealable (CPLR 5701, subd. [a], par. 2; Haner v. Van Buren, 240 App. Div. 800). The notice of appeal states that the ex parte order was issued pursuant to a prior order dated November 17, 1966. However, the notice nowhere states that the latter order is being appealed from. The notice consequently fails to bring that order up for review. There being no appeal-able order before the court, the appeal must be dismissed.

The second appeal is from an order entered November 30, 1966, which order denied a motion to vacate the afore-mentioned ex parte order. Such orders are appealable as of right only where the prior order, had it been on notice, would have been appealable as of right (CPLR 5701, subd. [a], par. 3). Here the prior order is the ex parte order. The ex parte order recites the findings and ordering provisions of the order of November 17, 1966, which found the appellant guilty of criminal contempt, directed his fine and imprisonment, and further directed him to surrender to the Sheriff on November 23, 1966; and in the event of his failure to surrender, that an ex parte order may issue to the Sheriff to take him into custody. While the ex parte order repeats the findings of contempt and the punishments therefor, its only effective provision is the direction to the Sheriff to enforce the provisions of the prior order. The prior order not having been appealed, we are bound to assume its validity, so the only questions left on appeal from the ex parte order, had that order been on notice, would be questions as to its form. Significantly, only such questions are raised in the notice of motion to vacate.

Of these questions there are two. The first concerns the completeness of the recitals, which we find to be in order. The second refers to the permission in the order to execute the same on a Sunday. As the defendant has already surrendered to the Sheriff, this question is academic.

The appeal from the order entered November 28, 1966 should be dismissed, without costs and without disbursements.

The order entered November 30, 1966, should be affirmed, without costs and without disbursements.

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30 A.D.2d 340, 292 N.Y.S.2d 135, 1968 N.Y. App. Div. LEXIS 3429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-powell-nyappdiv-1968.

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