Porter v. Int'l Bridge Co.

• Decision Date: 01 May 1900
• Citation: 163 N.Y. 79,57 N.E. 174
• Parties: PORTER v. INTERNATIONAL BRIDGE CO. et al.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 79

57 N.E. 174

PORTER

v.INTERNATIONAL BRIDGE CO. et al.

Court of Appeals of New York.

May 1, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Peter A. Porter against the International Bridge Company and others. From an interlocutory judgment overruling defendants' demurrers to the complaint, affirmed by the appellate division (60 N. Y. Supp. 819), defendants appeal. Motion to dismiss appeal denied, and judgment affirmed.

Adelbert Moot, for appellants.

Charles P. Norton, for respondent.

MARTIN, J.

A preliminary motion was made by the respondent to dismiss this appeal upon the ground that, when it was taken, more than 60 days had elapsed since the entry and notice of the interlocutory judgment. The judgment was entered and notice of its entry served November 28, 1899. During the next term thereafter an application was made to the appellate division for leave to appeal to the court of appeals, which was granted, and the following question of law certified: ‘Should the demurrers of the Grand Trunk Railway Company of Canada and the International Bridge Company be sustained upon the ground that two causes of action are united in the complaint in this action, contrary to the provisions of section 484 of the Code of Civil Procedure?’ On the 27th of January, 1900, a copy of the order allowing the appeal was served upon the respondent, and on February 20th the notice of appeal was served, and the appeal properly perfected. This was 84 days after the service of the judgment and notice, but less than 30 days after the order allowing the appeal was granted. The respondent insists that the interlocutory judgment was in effect an order; that the time within which an appeal could be properly taken was limited to 60 days, and, not having been taken within that time, the appeal should be dismissed. That the time within which such an appeal must be taken may be limited by notice to 60 days after the right to appeal exists is not denied. But the controverted question is when the 60 days commenced to run. If from the time of the service of a copy of the judgment, with a notice of its entry, then the appeal was too late, and should be dismissed. If from the time when the appeal was allowed, it was within the limitation, and the appeal was properly taken.

The respondent's contention is that section 1325 of the Code of Civil Procedure limits the time within which an appeal may be taken to 60 days after the service of the order appealed from, and a written notice of its entry, and that that section alone governs as to the time. Where the right of appeal exists when the order and notice are served, it is evident that section 1325 controls. But sections 190 and 191 authorize an appeal from a determination not otherwise appealable, when the court makes the proper order allowing it. It is manifest that in this case the appellants had no right to appeal until they obtained the order of the appellate division. Then for the first time they possessed that right. Until then they could take no effective steps towards an appeal, except to apply to the court for the necessary leave. Guarantee Trust & Safe-Deposit Co. v. Philadelphia, R. & N. E. R. Co., 160 N. Y. 1, 54 N. E. 575;Steamship Co. v. Seager, 160 N. Y. 312, 54 N. E. 574. Section 9 of article 6 of the constitution provides that the appellate division in any department may allow an appeal upon any question of law which in its opinion ought to be reviewed by the court of appeals. It was to carry this provision into effect that sections 190 and 191 were enacted. Thus, both the constitution and statutes, as they now stand, confer upon the court the right to allow such an appeal, and upon litigants the provisional right of appeal upon obtaining such an allowance. When the consent of the appellate division is given, the right becomes absolute. That this is a mere empty privilege, or a right of which parties without laches may be deprived by a limitation affording them no opportunity to avail themselves of it, cannot be properly maintained. To give such an effect to the provisions of section 1325 has no justification either in principle or authority. Therefore we are of the opinion that sections 190, 191, and 1325 should be read and construed together, and that the limitation contained in the latter must be held to apply only to cases where the right of appeal exists, and not to cases where an allowance is necessary, until after the order allowing it is granted. If the rule were otherwise, appellants, although guilty of no neglect or fault, might often be deprived of the right conferred by sections 190 and 191 because there was no session of the court after the entry of the judgment or order until 60 days had elapsed. No such result could...