Jones v. Decker

14 Abb. Pr. 391

• Court: New York Supreme Court
• Decided: May 15, 1861
• Status: Published

Opinion

By the Court.

*—Emott, J.

This appeal from an order of the City Court of Brooklyn, if it be well taken, is subject to the latter clause of section 6 of the City Court Act, which enacts that all provisions of law relative to appeals from courts of inferior jurisdiction to the Supreme Court, shall apply to appeals from said City Court.

Section 344 of the Code declares in what cases appeals will lie to this court from an inferior court, and section 345 provides that security must be given upon such appeal, that is, upon every appeal to this court from an inferior court, in the same manner and to the same extent as upon an appeal to the Court of Appeals. At the time of the passage of the act of 1850, amending the City Court Act, there was no appeal allowed from an order of an inferior court to the Supreme Court, and the defendants’ counsel contends that therefore the provisions contained in the Code as to appeals to the Court of Appeals do not apply to appeals from orders. That conclusion does not follow, however. ■ The 334th section of the Code declares that to render an appeal to the Court of Appeals effectual for any purpose, there must be a written undertaking in the sum of $250 to pay all costs and damages, or that amount must be deposited with the clerk with whom the judgment or order was entered. This section comprehends and provides for appeals from orders as well as from judgments; and it is applicable to every casein which an appeal is given to this court 'from an inferior court, whether it be from an order or from a judgment. It does not alter the case that no appeal is or was given by the Code from orders of inferior courts, for in 1860 an appeal was authorized from orders of County Courts. (laws of 1860, 787, ch. 459.) The appeal is given by the City Court Act. The manner of perfecting it is prescribed by the Code, and that is by giving the same security which is requisite on an appeal to the Court of Appeals, where an undertaking is requisite as well on an appeal from an order as from a judgment. As no security was given on this appeal, the motion to dismiss is granted, with $10 costs.

Present, Lott, Emott, and Brown, JJ.