Gambold v. MacLean

• Court: New York Court of Appeals
• Writing for the Court: LEHMAN
• Citation: 173 N.E. 220,254 N.Y. 357
• Parties: GAMBOLD v. MacLEAN et al.
• Decision Date: 14 October 1930

254 N.Y. 357
173 N.E. 220

GAMBOLD
v.
MacLEAN et al.

Court of Appeals of New York.

Oct. 14, 1930.

Action by Fred A. Gambold, as executor of the last will and testament of Charles S. Lamphear, deceased, against George W. MacLean and Ernest C. Colter, as surviving executors of and trustees under the last will and testament of Katherine L. MacLean, deceased. From a decision of the Appellate Division (229 App. Div. 729, 241 N. Y. S. 850) modifying and affirming a final judgment entered in the Supreme Court after a decision of the Appellate Division (220 App. Div. 773, 221 N. Y. S. 824) which unanimously affirmed an interlocutory judgment, defendants appeal. On motion to dismiss the appeal so far as it attempts to bring up for review the interlocutory judgment and the decision of the Appellate Division affirming that judgment.

Motion denied.

See, also, 126 Misc. Rep. 820, 215 N. Y. S. 607.

[173 N.E. 221]

[254 N.Y. 357]Appeal from Supreme Court, Appellate Division, Second Department.
John A. V. Murphy, of New York City, for the motion.

Herman A. Gray, of New York City, opposed.

LEHMAN, J.

The defendants have appealed as of right from a decision of the Appellate Division (229 App. Div. 729, 241 N. Y. S. 850) modifying and [254 N.Y. 358]affirming, as modified, a final judgment, entered in the court below, after a decision of the Appellate Division (220 App. Div. 773, 221 N. Y. S. 824), which unanimously affirmed an interlocutory judgment. The notice of appeal to this court from the final judgment states that the appellants intend to bring up for review the interlocutory judgment of the Supreme Court and the decision of the Appellate Division affirming that judgment. The respondent moves to dismiss the appeal so far as it attempts to bring up for review the interlocutory judgment and the decision of the Appellate Division affirming that judgment on the ground that ‘this court has no jurisdiction to review said interlocutory judgment, decision, * * * or judgment for the reason that the said Appellate Division by a unanimous decision affirmed the said interlocutory judgment * * * and that no appeal has been allowed either by the Appellate Division or * * * the Court of Appeals.’

The Constitution of the state (article 6, § 7) has defined the jurisdiction of the Court of Appeals and the classes of cases in which an appeal may be taken, and it has provided that ‘the Legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto.’ The Legislature in the Civil Practice Act, § 588, has provided for appeals in the classes of cases permitted by the Constitution. Other sections of the Civil Practice Act contain further provisions affecting appeals to this court. These sections cannot enlarge the constitutional restrictions upon the jurisdiction of the Court of Appeals and the classes of cases in which an appeal may be taken. Limitations contained in the definitions of the classes of cases in which an appeal may be taken to this court, embodied by the Legislature in section 588 of the Civil Practice Act, in obedience to the mandate of the Constitution, must be read into any other sections of that act which in terms authorize an appeal to this court. So we held in Sultzbach v. Sultzbach, 238 N. Y. 353, 144 N. E. 638.

[254 N.Y. 359]Until a final judgment has been entered, a judgment of the Appellate Division affirming an interlocutory judgment does not finally determine the action, and no appeal to the Court of Appeals may be taken except ‘where the appellate division allows the same.’ Civil Practice Act, § 588, subd. 4. A complete determination of the validity of the final judgment entered in the court of original jurisdiction after the affirmance of the interlocutory judgment by the Appellate Division requires consideration of the correctness of both the interlocutory judgment and the proceedings taken after the...