Squire v. McDonald

• Decision Date: 27 June 1893
• Parties: SQUIRE v. McDONALD et al. SAME v. SENIA et al.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 554

34 N.E. 398

SQUIRE

v.McDONALD et al.

SAME

v.SENIA et al.

Court of Appeals of New York.

June 27, 1893.

Appeal from court of common pleas of New York city and county, general term.

Actions by Newton Squire against Peter H. McDonald and others, and by the same plaintiff against Benjamin R. Senia and others. From a judgment of the general term in each case (21 N. Y. Supp. 1025;Id. 1027) affirming a judgment entered on a verdict directed by the court, defendants appeal. Appeals dismissed.

Kenneson, Crain & Alling, for appellants.

Rudd, Hunter & Wilder, for respondent.

PER CURIAM.

The judgments from which the appeals in these cases have been taken involve amounts less than $500, and an order was obtained from the general term giving leave to the defendants to appeal to this court. This motion is made in behalf of the respondent to dismiss the appeals on the ground that the order giving leave to appeal does not state any ground. Subdivision 3 of section 191 of the Code of Civil Procedure explicitly provides that an appeal cannot be taken from a judgment, if the matter in controversy is less than $500, unless the court below, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon, allows the appeal on the ground that a question of law is involved which ought to be reviewed by the court of appeals. So much of the provision as requires that the order should state the ground mentioned had been enacted by the legislature in chapter 322 of the Laws of 1874. In the case of Bastable v. City of Syracuse, 72 N. Y. 64, this court had occasion to consider the form of the order prescribed by the act of 1874, and held, because the order of the general term in that case was lacking in the statement of the ground which is lacking in the order in this case, that it was not a compliance with the act of 1874, and dismissed the appeal. The decision in that case is authority for the dismissal of these appeals.

The appellants object that Mr. Wilder, who, as attorney for the respondent, moves for the dismissal of the appeal, has no standing to make the motion, inasmuch as he was substituted as attorney for the respondent by an order made in the court below after the returns were filed in this court. While that practice is irregular, and such an order of substitution of attorneys should only be made by order of this court after the returns are filed here, nevertheless we do...