Smith v. Ely

46 Misc. 458, 92 N.Y.S. 310

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1905
• Status: Published

Opinion

Giegerich, J.

The notice of appeal recites that the plaintiff appeals “ from the order and judgment entered herein sustaining the demurrer of the defendants to the plaintiff’s complaint.” The record, however, discloses that the only step taken in the lower court was the entry of an order sustaining such demurrer and granting leave to the plaintiff to file an amended complaint upon terms, and that no judgment was ever entered upon such order.

Section 334 of the Municipal Court Act clearly contemplates the entry of a judgment upon a demurrer and unless such act contains a provision for the taking of an appeal from an order sustaining or overruling a demurrer, the appeal cannot be heard.

Our attention has not been called to any, nor have we been able, after diligent search, to discover any such provision.

The power of the Supreme Court to entertain appeals from the Municipal Court is purely statutory (Pascocello v. Brooklyn Heights R. R. Co., 26 Misc. Rep. 412; Leavitt v. Katzofí, 43 id. 26), and only such orders are appealable as are enumerated in sections 253, 254, 255, 256, and 257 of the said act. Leavitt v. Katzoff, supra.

If it could be said that by virtue of section 20 of the Municipal Court Act the practice in the Municipal Court might be assimilated with that of the Supreme Court, the appeal must nevertheless be dismissed, as the record does not contain a judgment. Cambridge Valley National Bank v. Lynch, 76 N. Y. 514; Ridgway v. Bacon, 68 Hun, 506; see McKeown v. Officer, 127 N. Y. 687.

The mere recital of a judgment in the notice of appeal is not sufficient, since the court cannot review a judgment not before it. Bidgway v. Bacon, 68 Hun 506.

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

Scott and McCall, JJ., concur.

Appeal dismissed, with costs.