Matter of Ballon v. Riti

190 N.E. 153, 264 N.Y. 67, 1934 N.Y. LEXIS 1396

• Court: New York Court of Appeals
• Decided: March 20, 1934
• Status: Published

Opinion

Per Curiam.

This appeal must be dismissed. The appeal is not from the judgment of a court of record of original jurisdiction direct to this court. (Civ. Prac. Act, § 588, subd. 3.)

Passing that point, under such subdivision on such an appeal only the constitutional question shall be considered and determined by this court.

The Appellate Division holds: (1) Not only that section 4 of title I of chapter 416 of the Laws of 1893, providing that the City Court of Yonkers, which is a court of record, may issue its subpoena for service outside the county of Westchester is unconstitutional, but also (2) that it has been repealed by implication by section 3 of chapter 852 of the Laws of 1930, which is a general act in relation to the City Court of Yonkers.

The determination of this appeal requires a consideration of section 4 of title I of chapter 416 of the Laws of 1893, and the act of 1930, and the question of implied repeal.

If the act of 1893 has been repealed, we do not reach the question of constitutionality. Therefore, the question of constitutionality is not the only question to be considered.

The appeal should, therefore-, be dismissed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not sitting.

Appeal dismissed.