Roberts v. Marson

28 N.Y. Sup. Ct. 363

• Court: New York Supreme Court
• Decided: June 15, 1880
• Status: Published

Opinion

Talcott, P. J.:

This is an appeal for tbe purpose of reviewing two orders made by tbe County Court of Oneida county, one denying a motion made by tbe plaintiff to set asidea nonsuit granted in the action, tbe other made by tbe same cotu't, granting a nonsuit in tbe said action, and refusing to bold tbe said action abated by the death of tbe •original defendant in tbe action.

Tbe action was an action of replevin, originally commenced in the court of a justice of tbe peace and carried up to tbe County Court by appeal.

We have already held in several cases at tbe last term of this court that no appeal lies to this court from an order made by a County Court in an action not commenced in that court but brought thither by appeal. (See Code of Civil Procedure, § 1342 ; Fish v. Thrasher, MS. opin. of Talcott, P. J., at tbe April term of this court, 1880,

* and a decision of tbe Court of Appeals in Andrews v. Long, 9 Weekly Dig., 513.) An appeal lies in such cases only from a final judgment. (Code Civil Procedure, § 1340.) This is not an appeal from a final judgment; indeed it does not appear that any final judgment has been rendered in the action.

Because we have no jurisdiction to hear the appeal from the orders, the appeal is dismissed, with $10 costs and disbursements.

Smith and Hardin, JJ., concurred.

Appeal dismissed, with $10 costs and disbursements.

Reported Ante, p. 15.