§ 11. [11.] (Am'd 1849, 1851, 1852, 1857, 1862.) Jurisdiction. The court of appeals shall have exclusive jurisdiction to review upon appeal every actual determination hereafter made at a general term by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo,† in the following cases, and no other : 1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment. 2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken, and when such order grants or refuses a new trial; but no appeal to the court of appeals, from an order granting a new trial, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judg ment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages, or other proceedings to render the judgment effectual, may be there had, in cases where such subsequent proceedings are requisite. * 3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment. * See Rules, in Appendix. † Laws 1857, vol. 1, p. 753, § 3. • Amended-See Appendix. COURT OF APPEALS. [$ 11. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this State, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections sixty and sixty-eight of this code. OTHER JURISDICTION : a. This court has also jurisdiction of all cases pending in the late court of errors on the first Monday of July, 1847, and on that day transferred to this court by the constitution, and now remaining undetermined (Laws of 1847, p. 322, s. 12); and this court or any judge thereof, in term or vacation, has power upon satisfactory proof that any final order or decree of the late court of chancery has not been properly enrolled, to make an order for the due enrollment thereof, or for an amendment of the enrollment thereof, to the same extent, and with the like effect that the said court of chancery might have done (Laws of 1853, p. 820); and see note to s. 333, post; and see Judiciary Act, Laws 1847, p. 320, ss. 4, 13; lb. p. 638, ss. 1, 23. b. Note to subd. 3.-Leave to appeal to the court of appeals from a judgment in the New York common pleas in an action commenced in an inferior court, will only be granted where the case involves great interests, or settles a principle of law affecting the decision of numerous other cases. Purchase, 1 Hilton, 357; 14 How. 230; and see Palmer v. Moeller, 9 Abb. 20, (Jackson v. note; 2 Hilton, 421.) c. An affidavit stating that the counsel for the moving party argued the case without full preparation, and that as he believes he did not make the court understand his points, does not furnish any ground for allowing an appeal to the court of appeals. (Drucker v. Patterson, 2 Hilton, 135.) d. Where the decision of the New York common pleas on the question presented by the appeal is in direct conflict with a decision of the general term of the supreme court in the first district, a case is shown for granting leave to appeal to the court of appeals. (Clapp v. Graves, 2 Hilton, 243.) e. The time fixed for the allowance of an appeal to the court of appeals in an action originating in a justices' court, cannot be enlarged. (Wait v. Van Allen, 22 N. Y. 319) Accordingly where an action was commenced in a justices' court, a judgment rendered for the plaintiff, a renewal of that judgment by the county court, and a refusal of the county court judgment by the supreme coust at a term in September, 1858, and judgment perfected 22d October following. The next general term of the supreme court in that district was in January 1859, at which term a motion was made for leave to appeal to the court of appeals. No decision was made on that motion until the following general term, when the motion was allowed. At the next general term in May, 1859, defendant moved for leave to enter the order giving permission to appeal nunc pro tunc as of the general term of January, 1859; that motion was granted, and the order entered accordingly; on motion to dismiss the appeal it was held that the order was not made in time, that the defect could not be cured by entering the order nunc pro tunc, and the appeal was dismissed. (Id.) f. This decision seems adverse to Clapp v. Graves, 9 Abb. 20; 2 Hilton, 317, in which it was held sufficient if the application for leave to appeal to the court of appeals under this section is made and heard during the next term after judgment was entered; and though the court do not decide upon the applica § 11. [11.] (Am'd 1849, 1851, 1852, 1857, 1862.) Jurisdiction. The court of appeals shall have exclusive jurisdiction to review upon appeal every actual determination hereafter made at a general term by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo,† in the following cases, and no other: 1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment. 2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken, and when such order grants or refuses a new trial; but no appeal to the court of appeals, from an order granting a new trial, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judg ment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages, or other proceedings to render the judgment effectual, may be there had, in cases where such subsequent proceedings are requisite. * 3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment. * See Rules, in Appendix. † Laws 1857, vol. 1, p. 753, § 3. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this State, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections sixty and sixty-eight of this code. OTHER JURISDICTION: a. This court has also jurisdiction of all cases pending in the late court of errors on the first Monday of July, 1847, and on that day transferred to this court by the constitution, and now remaining undetermined (Laws of 1847, p. 322, s. 12); and this court or any judge thereof, in term or vacation, has power upon satisfactory proof that any final order or decree of the late court of chancery has not been properly enrolled, to make an order for the due enrollment thereof, or for an amendment of the enrollment thereof, to the same extent, and with the like effect that the said court of chancery might have done (Laws of 1853, p. 820); and see note to s. 333, post; and see Judiciary Act, Laws 1847, p. 320, ss. 4, 13; lb. p. 638, ss. 1, 23. b. Note to subd. 3.-Leave to appeal to the court of appeals from a judgment in the New York common pleas in an action commenced in an inferior court, will only be granted where the case involves great interests, or settles a principle of law affecting the decision of numerous other cases. (Jackson v. Purchase, 1 Hilton, 357; 14 How. 230; and see Palmer v. Moeller, 9 Abb. 20, note; 2 Hilton, 421.) c. An affidavit stating that the counsel for the moving party argued the case without full preparation, and that as he believes he did not make the court understand his points, does not furnish any ground for allowing an appeal to the court of appeals. (Drucker v. Patterson, 2 Hilton, 135.) d. Where the decision of the New York common pleas on the question presented by the appeal is in direct conflict with a decision of the general term of the supreme court in the first district, a case is shown for granting leave to appeal to the court of appeals. (Clapp v. Graves, 2 Hilton, 243.) e. The time fixed for the allowance of an appeal to the court of appeals in an action originating in a justices' court, cannot be enlarged. (Wait v. Van Allen, 22 N. Y. 319) Accordingly where an action was commenced in a justices' court, a judgment rendered for the plaintiff, a renewal of that judgment by the county court, and a refusal of the county court judgment by the supreme coust at a term in September, 1858, and judgment perfected 22d October following. The next general term of the supreme court in that district was in January 1859, at which term a motion was made for leave to appeal to the court of appeals. No decision was made on that motion until the following general term, when the motion was allowed. At the next general term in May, 1859, defendant moved for leave to enter the order giving permission to appeal nunc pro tunc as of the general term of January, 1859; that motion was granted, and the order entered accordingly; on motion to dismiss the appeal it was held that the order was not made in time, that the defect could not be cured by entering the order nunc pro tunc, and the appeal was dismissed. (Id.) f. This decision seems adverse to Clapp v. Graves, 9 Abb. 20; 2 Hilton, 317, in which it was held sufficient if the application for leave to appeal to the court of appeals under this section is made and heard during the next term after judgment was entered; and though the court do not decide upon the applies tion until a subsequent term, they may then order the application to be al lowed and the order entered as of the proper term. a. Where in an action in the marine court the plaintiff succeeded on the trial; again, on appeal to the general term of that court; and again, on appeal to the common pleas,-the court refused an order allowing an appeal to the court of appeals (Purchase v. Jackson, 14 How. 230; 1 Hilton, 357). § 13. [12.] Power of the court. The court of appeals may reverse, affirm, or modify, the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law. * § 13. [13.] (Am'd 1851, 1852, 1858, 1859, 1862, 1863.) Terms. Preference of causes. There shall be four terms of the court of appeals in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require. But the judges of said court may in their discretion appoint one of said terms in each year to be held in the city of New York. Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar. On a second and each subsequent appeal to the court of appeals, or when an appeal has once been dismissed for defect or irregularity, the cause shall be placed upon the calendar as of the time of filing the first appeal; and whenever in any action or proceeding in which the people of this state or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar. For other cases that have a preference see Rule XIII Court of Appeals post. §14. [14.] (Am'd 1849, 1851.) Judgment. Rehearing. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be reheard. * Amended-See Appendix. |
