Waldo v. Schmidt

Decision Date13 December 1910
Citation200 N.Y. 199,93 N.E. 477
PartiesWALDO et al. v. SCHMIDT.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by Eugene Waldo and another against Fedor Schmidt, individually, etc. From an order of the Appellate Division (139 App. Div. 589,124 N. Y. Supp. 189), reversing an order granting a motion for leave to amend a notice of appeal, defendant appeals pursuant to leave granted by the Appellate Division certifying a question to the Court of Appeals, and he also moves in the Court of Appeals for leave to amend the notice. Order affirmed, and motion to amend notice of appeal granted.

See, also, 198 N. Y. 193, 91 N. E. 521,125 N. Y. Supp. 1149.

Martin L. Stover, for appellant.

Clarence De Witt Rogers, for respondents.

WERNER, J.

The Supreme Court at Special Term granted to the above-named appellant an order giving him leave to amend his notice of appeal. From that order the present respondents appealed to the Appellate Division, where the order was reversed upon two grounds: (1) That the court at Special Term had no power to allow the amendment. (2) That the amendment was one which had the effect of extending the appellant's time to appeal, and therefore should not have been granted. After making its decision, the Appellate Division granted to the appellant leave to appeal to this court and certified the following question of law: ‘Did the Supreme Court at Special Term have power to make the order herein dated April 26, 1910, amending a notice of appeal to the Court of Appeals from an order of the Appellate Division of the Supreme Court?’ Since our power of review is limited to a categorical answer to the question certified (Devlin v. Hinman, 161 N. Y. 115, 55 N. E. 386;Devis v. Cornue, 151 N. Y. 172, 45 N. E. 449;Grannan v. Westchester Racing Ass'n, 153 N. Y. 449, 47 N. E. 896), our discussion would ordinarily be confined to the considerations germane to that question and no other; but the appellant has submitted to us an original motion for leave to amend his notice of appeal which he asks us to grant if his appeal proves unsuccessful, and for the convenience of all concerned we shall consider in one opinion the appeal from the order referred to as well as the original motion.

The question which arises upon the appeal is whether a motion for leave to amend a notice of an appeal taken to the Court of Appeals from an order or judgment of the Appellate Division may be made at Special Term or must be made to the Appellate Division, where the moving party elects to address his motion to the Supreme Court instead of the Court of Appeals. The Code of Civil Procedure (section 1303) directs that such a motion must be to ‘the court, in or to which the appeal is taken,’ and we are to decide whether the words ‘the court in’ refer only to the Appellate Division or to the Supreme Court in its entirety. The appellant contends that there is only one Supreme Court, of which the Special Term is as much a part as the Appellate Division; that, when an appeal is taken to the Court of Appeals from an order or judgment of the Appellate Division, it is an appeal from the Supreme Court; and that, when a motion is made at Special Term to amend the notice of such an appeal, it is made in the court from which the appeal is taken. The premise of this argument is theoretically sound, but its conclusion is not so, for it ignores several practical considerations of controlling influence. There is but one Supreme Court, it is true, but it is divided by the Constitution, the statutes, and the rules of practice into two distinct parts. The Trial and Special Terms comprise one part, vested with the general original jurisdiction in law and equity formerly possessed and exercised by the Supreme Court of the colony of New York and by the Court of Chancery in England, subject to the exceptions, additions, and limitations created by the Constitution and laws of the state. Code Civ. Proc. § 217. The Appellate Division forms another and distinct part of the same court. It is created by the Constitution (article 6, § 2) for the express purpose of exercising appellate jurisdiction in matters arising in the Trial and Special Terms of the Supreme Court and in inferior courts. The Appellate Division is given original jurisdiction in a very few matters, of which the most conspicuous illustration is the right to hear and determine real controversies upon submission (Code Civ. Proc. § 1281), but its chief function is to exercise appellate jurisdiction, which is designed to be final in certain specified cases and intermediate in many more. It is obvious, therefore, that, while there is but one Supreme Court in theory and in fact, it is divided into separate parts, which exercise distinct and dissimilar functions. For convenience and brevity, these parts are spoken of both colloquially and in the statutes as courts, and such they are in fact, although all included under the generic title of the Supreme Court. The Trial and Special Terms have many powers and duties which are not possessed by or imposed upon the Appellate Division, and which the former may exercise even after an appeal has been taken to the latter or to this court. A few familiar instances will suffice to illustrate this phase of the court's original and continuing jurisdiction. The pendency of an appeal to the Appellate Division, or to this court, is not a bar to a motion for a new trial at Special Term. Henry v. Allen, 147 N. Y. 346, 41 N. E. 694. Substituted attorneys may move at Special Term for the delivery to them of papers in the action after an appeal has been taken. People ex rel. Hoffman v. Board of Education, N. Y. City, 141 N. Y. 86, 35 N. E. 1087. And the same rule is followed in cases where, for one reason or another, the record as made in the court of original jurisdiction has to be amended for use in the appellate courts. Peterson v. Swan, 119 N. Y. 662, 23 N. E. 1004. There are other proceedings, notices, and orders, however, in which we find the exact antithesis of this general condition. Some records of the Appellate Division relate so exclusively to its own peculiar jurisdiction as to preclude the possibility of interference therewith by other courts. If this were not so, that court could not perform its functions with any degree of order or independence. It is a truism which has become axiomatic that all courts of record must have control of all proceedings which relate solely to their own orders and judgments. In the light of these suggestions, it is obvious that a notice of appeal to this court from an order or judgment of the Appellate Division is a proceeding in the action with which the Special Term has no concern. An application to amend such a notice, if addressed to the Supreme Court, must be made to the Appellate Division, for that is the court in which the appeal is taken. There is no such thing as an appeal to this court from an order or judgment of the Special Term or Trial Term, except (1) in the case of a final judgment at Special Term after the affirmance of an interlocutory judgment by the Appellate Division, or the refusal by the latter court of an application for a new trial made to it in the first instance, or upon appeal from an order of the Special Term denying such an application pursuant to the provisions of section 1336 of the Code of Civil Procedure; (2) in capital cases in which the statute (Code Cr. Proc. § 517) provides that appeals shall be taken directly from the courts of first instance to this court. In all other cases appeals to this court can only be taken from actual determinations made by the Appellate Division (Code Civ. Proc. § 190). The statutes provide that a notice of such an appeal may, under specified circumstances, be amended by the court ‘in or to which’ the appeal is taken. Code Civ. Proc. § 1303. This power of amendment is distinctly limited to two courts, and the limitation necessarily excludes any other. As applied to the case at bar, these two courts are the Appellate Division, in which the appeal was taken, and the Court of Appeals, to which the appeal was taken.

The appellant cites Mott v. Lansing, 5 Lans. 516, as an authority holding that the court of Special Term has power to amend a notice of an appeal taken from the Appellate Division to this court, and our attention is directed to the fact that in that case the order of the General Term is said (in Lavalle v. Skelly, 90 N. Y. 548) to have been affirmed in this court. We have been unable to find any such record of Mott v. Lansing in this court. In that case the General Term, in the Third Department, reversed an order of the Special Term denying, for want of power, a motion to amend a notice of appeal to this court by inserting therein a stipulation for judgment absolute. The General Term seems to have assumed that the Special Term had power to grant the amendment, for it is not discussed in the brief opinion handed down. In the later case of Bulkley v. Whiting Mfg. Co., 136 App. Div. 479,121 N. Y. Supp. 159, the Appellate Division, in the First Department, held that the Special Term had no such power. In that case the...

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