Van Arsdale v. King

• Decision Date: 15 March 1898
• Citation: 49 N.E. 866,155 N.Y. 325
• Parties: VAN ARSDALE v. KING.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 325

49 N.E. 866

VAN ARSDALE

v.KING.

Court of Appeals of New York.

March 15, 1898.

Appeal from supreme court, appellate division, Second department.

Action by William H. Van Arsdale against George King. From a judgment (45 N. Y. Supp. 1150) affirming an order denying a motion by appellant to set aside another order, he appeals. Dismissed.

Britton H. Tabor, for appellant.

Isaac N. Mills, for respondent.

O'BRIEN, J.

The original order in this case, which the appellate division has affirmed, denied a motion amde by the defendant to set aside another order, which granted leave to the plaintiff to bring this action to recover upon an old judgment. It appears that on the 27th day of November, 1880, the plaintiff recovered a judgment against the defendant in the county court for $453.38. On the 6th of December, 1890, the court, at special term, made an order granting leave to the plaintiff to bring an action on the judgment in the supreme court. The papers and order to show cause upon which the order was made were served upon the defendant by mail on the 26th of November, 1890, directed to him at what was claimed and alleged to be his residence in the state of Massachusetts. The defendant did not appear to oppose the motion. On the 5th of April, 1892, the defendant was found in this state, and personally served with the summons and complaint in the action. He did not appear or defend, and the plaintiff entered judgment by default on the 19th of May, 1892, for $785.09. On the 14th of April, 1894, the defendant procured an order to show cause, returnable on April 21st, why the judgment and the order granting leave to sue should not be vacated and set aside. On this motion the defendant claimed and submitted proof tending to show that he had all the time been a resident of the city of New York, and on that showing asked to have all the proceedings vacated, either because they were without jurisdiction or irregular. It cannot very well be urged in this court that the proceedings were void, since the court, in granting leave to sue, and again upon the motion to vacate, had proof before it tending to show that all the time he had in fact resided in Massachusetts. In other words, his residence on both applications was, under the circumstances, a question of fact, and on the first application the plaintiff's proof was uncontradicted. But we will assume for the purpose of disposing of the case, and for that purpose only, that the court did not acquire jurisdiction, since that is the most favorable view possible to take for the defendant, who contends that he has the right to have the order denying his motion to vacate reviewed in this court.

There is evidently much confusion in the profession with reference to the class of orders that this court has the power to review, though section 190 of the Code of Civil Procedure, following the exact words of the constitution, would seem to be very plain. Appeals are constantly brought to this court from orders on the ground that in some remote way they are supposed to determine actions. In the first place, there cannot, properly speaking, be any such thing as an order which determines an action within the meaning of the Code. Actions cannot be determined by orders, but by final judgments. A motion may be determined by an order, but the final determination of an action must be a judgment. There may be, in practice or in the progress of the cause, such a thing as an order which may or may not have the effect of ending the case in the sense that one party or the other can go no further; but such an order determines no controversy or any action in the sense contemplated by the...