Tiley v. Phillips

New York Court of Appeals

Tiley v. Phillips

3 How. Pr. 364

DecidedJanuary 15, 1849

StatusPublished

This text of 3 How. Pr. 364 (Tiley v. Phillips) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tiley v. Phillips, 3 How. Pr. 364 (N.Y. 1849).

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Opinion

Bronson, J.

The Judiciary Act of December, 1847, gave an appeal from the decision of the Supreme Court in granting or refusing a new trial on a bill of exceptions. (Stat. 1847, p. 639, § 5-10.) If that provision was still in force, the Defendant should have followed it, and given a bond on bringing the appeal. (§ 7.) But that is not the only difficulty. The decision appealed from was made after the Code of Procedure took effect, and after the right of appeal in such cases was at an end. The 11th section of the code (see also § 282,) gives this court jurisdiction upon appeal in certain specified cases, “and no other;” and the order appealed from is not among the specified cases. The provisions of the Judiciary Act of 1847, giving the appeal are inconsistent with the 11th section of the code, and are consequently repealed. (Code, § 388.) This point was, in effect, decided at the last November term. (Grover v. Coon, ante, page 341. See, also, Selden v. Vermilya, ante, page 338.) The appeal must be dismissed; but as it was brought since the code took effect, we cannot give costs of motion, to the moving party. (Code, § 270. And see Syme v. Ward, ante, page 342.)

Appeal dismissed with costs of the appeal.

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Bronson, J.

The Judiciary Act of December, 1847, gave an appeal from the decision of the Supreme Court in granting or refusing a new trial on a bill of exceptions. (Stat. 1847, p. 639, § 5-10.) If that provision was still in force, the Defendant should have followed it, and given a bond on bringing the appeal. (§ 7.) But that is not the only difficulty. The decision appealed from was made after the Code of Procedure took effect, and after the right of appeal in such cases was at an end. The 11th section of the code (see also § 282,) gives this court jurisdiction upon appeal in certain specified cases, “and no other;” and the order appealed from is not among the specified cases. The provisions of the Judiciary Act of 1847, giving the appeal are inconsistent with the 11th section of the code, and are consequently repealed. (Code, § 388.) This point was, in effect, decided at the last November term. (Grover v. Coon, ante, page 341. See, also, Selden v. Vermilya, ante, page 338.) The appeal must be dismissed; but as it was brought since the code took effect, we cannot give costs of motion, to the moving party. (Code, § 270. And see Syme v. Ward, ante, page 342.)

Appeal dismissed with costs of the appeal.

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Bluebook (online)

3 How. Pr. 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiley-v-phillips-ny-1849.