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Gornell Law School Library
THE JURISDICTION

OF

THE COURT OF APPEALS

OF

THE STATE OF NEW YORK,

BY

BENJAMIN N. CARDOZO,

of the New York Bar.

BANKS & COMPANY,
ALBANY, N. Y.
1903.
LAW

CopyRIGHTED, 1903
BY
BANKS & COMPANY.
PREFACE.

Two causes have in recent years worked impor-
tant changes in the jurisdiction of the Court of Ap-
peals. The first is the adoption in 1894 of the so-
called ‘‘ short” form of decision. The second is the
adoption of the amended Constitution, which, so
far as the Judiciary Article is concerned, became a
law on January 1, 1896. Important as these
changes have been, the decisions of the Court seem
to justify the statement that their full meaning has
hardly been apprehended by the bar at large. Par-
ticularly has the failure to understand how orders
should be drawn so as to present questions to the
Court for review, resulted, on many occasions, in
a denial of justice. At the present time, the more
important questions arising from the amendment of
the Constitution and the statutes, have been the
subject of judicial decision; and a large body of
law, defining the jurisdiction of the Court, and
modifying in many ways the rules hitherto in force,
has been thus evolved. It has seemed that a state-
ment in orderly form of the present law upon these
subjects, would be helpful to the bar.

B. N. C.

New York, January 1, 1903.
THE JURISDICTION OF THE COURT OF

SEc.

8.

APPEALS OF THE STATE OF NEW
YORK.

TABLE OF CONTENTS.

Origin of the Court’s Jurisdiction, and Pow-
er of the legislature to restrict the same.

Power to enlarge the Jurisdiction.

Composition of the Court.

Constitutional Restrictions upon the Court’s
Jurisdiction.

Statutes regulating the Court’s Jurisdiction.

Code of Civil Procedure.
Code of Criminal Procedure.

The Constitutional Theory of the Function
of the Court.

The Restriction of the Court’s jurisdiction,
except in capital cases, to questions of law.
Consequences of that restriction, first, as
affecting the power to review the reversal
of a judgment or final order of a referee
or of a court, without a jury; second, as
affecting the power to review the reversal
of a judgment in an action tried before a
jury; and third, as affecting the power to
review the affirmance of a judgment.

Questions reviewable on appeals from revers-
al of Judgment or final order of court or
referee. Form of order of reversal. Pre-
sumption as to grounds of decision.

vil
Io.
II.

12.
13.
14.
15.
16.
1%.

18.

19.

20.
2i.
22.

2s,

TABLE OF CONTENTS.

The same subject continued. Power of the
Court to review a reversal stated to be on
the facts, but really on the law.

The same subject continued.

What is a reversal on the facts as distin-
guished from one on the law.

The same subject continued.

The same subject continued. Enumeration
of possible grounds of a reversal on the
law.

The same subject continued. When order
should state that reversal was on the facts.

The same subject continued.

The same subject continued.

Questions reviewable on appeal from reversal
of final order.

The same subject continued. Review of dis-
cretionary orders in mandamus and cer-
tiorari proceedings.

Review by the Court of Appeals of reversal
in jury Cases. Form of order necessary to
give jurisdiction, and questions reviewable
when jurisdiction exists.

The same subject continued.

The same subject continued.

The same subject continued. Rule in man-
damus proceedings after trial of issues aris-
ing on return to alternative writ.

The same subject continued. Rule in crim-
inal causes.

viii
24.

25.
26.

27,

28.
29.

30.
cae

32.
33-

34-
35-

36.
37-

TABLE OF CONTENTS.

Review .by the Court of Appeals of judg-
ments of affirmance rendered by a divided
Appellate Division. Questions reviewable
on such an appeal.

The same subject continued. Necessity for
an exception.

How far the Court of Appeals may consider
facts not embodied in the decision, for the
purpose of reversing a judgment, where
the Appellate Division was divided, and
how far it may do the same for the pur-
pose of affirming a judgment.

How far questions of law may be consid-
ered if not raised in the Court below.

The same subject continued.

Limitation of the foregoing rules to cases of
affirmance by a divided Appellate Division.

Review of discretionary decisions.

The same subject continued. Decisions held
to be discretionary.

The same subject continued.

The same subject continued. Rule in man-
damus and certiorari proceedings.

The same subject continued.

Enumeration of discretionary decisions con-
tinued.

The same subject continued.

The same subject continued. The distinc-
tion between discretionary orders and those
not discretionary still important under the
present constitution, even where the orders

ix
38.
39.
40.
4I.
42.
43.
44.

45-

47.
48.

49.

50.

TABLE OF CONTENTS.

are intermediate and hence not reviewable
as of right.

Enumeration of discretionary orders con-
tinued.

Enumeration of discretionary orders contin-
ued.

Enumeration of discretionary orders contin-
ued.

Enumeration of discretionary orders contin-
ued.

Enumeration of discretionary orders contin-
ued.

Enumeration of discretionary orders contin-
ued.

Enumeration of discretionary orders contin-
ued.

Enumeration of discretionary orders contin-
ued.

Form of order necessary to give jurisdiction
to the Court of Appeals where decision in
the court below may have been based on
discretionary grounds. Presumption as to
exercise of discretion.

The same subject continued.

The same subject continued.

The same subject continued. Rule applica-
ble to final orders in special proceedings.

The same subject continued.
x
51.

52.
53-
54.

55:

56.

57:

58.

59:

60.

61.

62.
63.

TABLE OF CONTENTS.

Review by Court of Appeals of judgments of
death. Necessity for exceptions on such
appeals and on appeals in other criminal
causes.

Necessity for exceptions in Civil Causes.

The same subject continued.

Review of affrmance of judgment or final
order made by a unanimous Appellate Di-
vision.

The same subject continued. Form of or-
der. What is a unanimous judgment of
affirmance.

The same subject continued. Power to re-
view a unanimous affirmance in actions
tried before a referee or before the court
without a jury.

The same subject continued. Distinction
between findings and short decision.

The same subject continued. The short de-
cision.

The same subject continued. The short de-
cision.

The same subject continued. Review of
unanimous affirmance where decision is in
short form.

The same subject continued. Review of
unanimous affirmance where the decision is
in the form of express findings.

The same subject continued.

Rule as to effect of unanimous affirmance ap-
plicable to implied findings.

xi
65.

66.
67.
68.
69.
70.
wT:
92.
73:
74-
75:

76.

77-

TABLE OF CONTENTS.

Illustrations of the application of the rule as
to the effect of a unanimous affirmance.
Rule as to effect of unanimous affirmance ap-
plicable to final orders as well as judg-

ments.

Power to review a unanimous affirmance of
a judgment in actions tried before a jury.
Illustrations of the application of the fore-

going rules.

What questions are reviewable in actions
tried before a jury notwithstanding a
unanimous affirmance.

The same subject continued.

Unanimous affirmance of judgment on ver-
dict directed by the Conte What is a di-
rected verdict.

Does the rule as to the effect of a unanimous
affrmance apply to criminal causes?

Dismissal of appeal where unanimous af-
firmance leaves no question for review. |

What orders and judgments are reviewable
in the Court of Appeals.

Distinction between final judgments and fi-
nal orders.

The same subject continued.

Distinction between final and interlocutory
judgments, and between final and inter-
mediate orders.

The same subject continued.

The same subject continued.

xii
79:

80.
81.

82.

84.
85.
86.

87.

8S RB

QI.

92.
93-
94.
95.

TABLE OF CONTENTS.

How interlocutory judgments may be re-
viewed.

The same subject continued.

Changes effected by the present Constitution
in the Court’s power to review interlocu-
tory judgments.

The same subject continued.

How intermediate orders necessarily affect-
ing the final relief may be reviewed.

Meaning of phrase “an intermediate order
necessarily affecting the final judgment.”

In cases of affirmance, appeal is from the
judgment and not from the order.

In cases of reversal, where a new trial is
granted, appeal is from the order.

Extent of relief that may be granted by the
Court of Appeals on appeal from final
judgment or final order.

The same subject continued.

The same subject continued.

What is a final order in a special proceeding.

Enumeration of orders held to be final orders
in special proceedings.

Enumeration of orders held’ not to be final.

The same subject continued.

The same subject continued.

The same subject continued.

Jurisdiction extends to all final orders in
special proceedings, though the proceed-
ings are the creation of statutes passed af-
ter the adoption of the Constitution. But

xili
97:

98.
99.
100.

IOI,
102.
103.
104.

105.

106.
107.
108.

109.
110,

Iil.
112.

113.

114.

TABLE OF CONTENTS.

the jurisdiction is subject to limitation by
the legislature.

Review of orders granting new trials on ex-
ceptions.

The same subject continued.

Stipulations for judgments absolute.

The same subject continued.

The same subject continued.

Effect of stipulation.

The same subject continued.

When appeal may be withdrawn after stipu-
lation for judgment absolute has been giv-
en.

Exceptions to the Court’s jurisdiction to re-
view final judgments, final orders, and or-
ders granting new trials on exceptions.

Appeals from inferior courts.

Appeals in actions for personal injuries.

The same subject continued. Principles gov-
erning allowance of appeal.

How appeal should be allowed and effect
of its allowance.

Appeals in actions to set aside fraudulent con-
veyanices.

Effect of the allowance of an appeal.

Appeals in actions for wages, etc.

Appeals in actions on an individual bond or
undertaking on appeal.

Appeals from intermediate orders.

xiv
115.

116.
117.

118.

119.
120.

I2I.

122.
123,
124.
125.

126.

127.
128.
1209.
130.
131.

132)

TABLE OF CONTENTS.

Effect of statute allowing appeals from in-
termediate orders under certain conditions.

Within what time appeal must be allowed.

Manner in which appeal from intermediate
orders should be allowed. Form of cer-
tificate.

Form of certificate continued.

Only questions of law may be certified.

Presumptions as to grounds of decision when
questions are certified.

Jurisdiction of the Court to review orders
and judgments in criminal cases. What
orders and judgments may be reviewed.

The same subject continued.

The same subject continued.

Original jurisdiction of the Court.

Jurisdiction limited to “actual determina-
tions.” Judgments by default or “ pro
forma.”

The same subject continued. Abstract con-
troversies.

Who may appeal.

The same subject continued.

When appeal must be taken.

The same subject continued.

How appeal must be taken. Undertaking,
return and case.

What applications must still be made in the
court below after an appeal to the Court of
Appeals.

xv
TABLE OF CONTENTS.

133. When jurisdiction of the Court is termi-
nated.
134. Rearguments.
APPENDIX.
Summary of Rules regulating the form of
orders on appeal to the Court of Appeals.
Forms of Orders.
Rules of the Court of Appeals.
Table of Cases cited.
INDEX.
THE JURISDICTION OF THE COURT OF APPEALS
OF THE STATE OF NEW YORK.

§1. Origin of the court’s jurisdiction, and power of
the Legislature to restrict the same.

The Court of Appeals owes its existence to the
sovereign will of the people, expressed in the Con-
stitution.of the State. But though the existence of
the court is constitutional, its jurisdiction, in part
at least, is statutory. The Constitution lays cer-
tain restrictions upon the jurisdiction of the court;
it marks certain limits which the Legislature may
not transcend; but the Legislature’s power of fur-
ther restriction is unlimited, with the single excep-
tion that the right to appeal shall not depend upon
the amount involved (Constitution, Art. VI, sec.
9; Halliburton vs. Clapp, 149 N. Y. 183, 187; Peo-
ple ex rel. Feeny vs. Board of Canvassers, 156 N.
‘YY. 36, 43). The amplitude of legislative control
to which it is subject, has been recognized by the

court itself on numerous occasions (Sciolina vs.
I
THE COURT OF APPEALS.

Erie Preserving Co., 151 N. Y. 50, 52; Boyd
vs. Gorman, 157 N. Y. 365, 367; Reed vs. Mc-
Cord, 160 N. Y. 330, 333; Szuchy vs. Hillside
Coal & Iron Co., 150 N. Y. 219, 224; Croveno vs.
Atlantic Ave. R. R. Co., 150 N. Y. 22; Com-
mercial Bank vs. Sherwood, 162 N. Y. 310, 316).

§2. Power to enlarge the jurisdiction.

The Legislature’s power of control over the
court’s jurisdiction has more frequently manifested
itself in restriction than in enlargement. But it has
been said that the power to enlarge the jurisdiction
also exists, provided that the Legislature shall not
thereby overstep the barriers which in certain cases
the Constitution itself has interposed. (People ex
rel. Commissioners. of Charities vs. Cullen, 153 N.
Y. 629.) “ The provisions of the Constitution (Art.
VI, sec. 9) regulating the jurisdiction of the Court
of Appeals, and providing that the Legislature may
further restrict it, do not prohibit the Legislature
from enlarging the jurisdiction of the court, save
only in those special cases which are expressly with-
drawn from review.” (People ex rel. Commis-
sioners of Charities vs. Cullen, supra.) No leg-
islation, however, can clothe the court with power,
except where the judgment is of death, to pass
upon any question of fact, nor can any legislation
clothe it with power to review, after a unanimous
affirmance by the Appellate Division, the sufficiency
of the evidence to support a finding or a verdict not
directed by the court. For the same reason, where

2
THE COURT OF APPEALS.

the appeal is from an interlocutory judgment, or an
intermediate order, other than an order granting a
new trial on exceptions, there would seem to be no
power in the Legislature to dispense with the neces-
sity for the allowance of the appeal by the Appellate
Division. This would leave the jurisdiction over
criminal causes — to which the limitations of the
Constitution have little, if any application (People
vs. Miller, 169 N. Y. 339, 343; post 107)— as the
chief field for the possible enlargement of the court’s
jurisdiction. That jurisdiction cannot, however, be
enlarged by the stipulation of the parties (Hoes vs.
Edison General Electric Co., 150 N. Y. 87; Bronk
vs. N. Y.& N. H.R. R. Co., 95 N. Y. 656). “ The
jurisdiction of the court is designated and created by
law, and it has no other ” (Rich vs. Manhattan Ry.
Co., 150 N. Y. 542, 544; Hewlett vs. Elmer, 103
N. Y. 156, 164; People ex rel. Commrs. of Charities
vs. Cullen, 151 N. Y. 54, 56; People vs. Trezza,
128 N. Y. 529).

§ 3. Composition of the court.

The membership of the court is regulated by secs.
7 and 8 of Art. VI. of the Constitution. They
read as follows:

“Sec. 7. The court of appeals is continued. It
shall consist of the chief judge and associate judges
now in office, who shall hold thetr offices until the
expiration of their respective terms, and their suc-
cessors, who shall be chosen by the electors of the
state. The official terms of the chief judge and

3
THE COURT OF APPEALS.

associate judges shall be fourteen years from and
including the first day of January next after their
election. Five members of the court shall form a
quorum, and the concurrence of four shall be neces-
sary to a decision. The court shall have power to
appoint and remove its reporter, clerk and attend-
ants. Whenever and as often as a majority of the
judges of the court of appeals shall certify to the
governor that said court is unable, by reason of the
accumulation of causes pending therein, to hear
and dispose of the same with reasonable speed, the
governor shall designate not more than four jus-
tices of the supreme court to serve as associate
judges of the court of appeals. The justices so
designated shall be relieved from their duties as
justices of the supreme court and shall serve as
associate judges of the court of appeals until the
causes undisposed of in said court are reduced to
two hundred, when they shall return to the supreme
court. The governor may designate justices of the
supreme court to fill vacancies. No justice shall
serve as associate judge of the court of appeals
except while holding the office of justice of the su-
preme court, and no more than seven judges shall
sit in any case.

“Sec. 8. When a vacancy shall occur otherwise
than by expiration of term, in the office of chief or
associate judge of the court of appeals, the same
shall be filled, for a full term, at the next general
election happening not less than three months after
such vacancy occurs; and until the vacancy shall

4
THE COURT OF APPEALS.

be so filled, the governor, by and with the advice
and consent of the senate, if the senate shall be
in session, or if not in session, the governor, may fill
such vacancy by appointment. If any such ap-
pointment of chief judge shall be made from among
the associate judges, a temporary appointment of
associate judge shall be made in like manner; but in
such case, the person appointed chief judge shall
not be deemed to vacate his office of associate judge
any longer than until the expiration of his appoint-
ment as chief judge. The powers and jurisdiction
of the court shall not be suspended for want of ap-
pointment or election, when the number of judges
is sufficient to constitute a quorum. All appoint-
ments under this section shall continue until and in-
cluding the last day of December next after the elec-
tion at which the vacancy shall be filled.”

The power conferred by these sections is limited
by sec. 3 of Art. VI, which provides that “ no judge
or justice shall sit in the appellate division or in the
court of appeals in review of a decision made by
him or by any court of which he was at the time a
sitting member ” (Van Arsdale vs. King, 152 N. Y.
69, 71.) The provisions as to the disqualification of
a judicial officer to sit as a judge cannot be waived.
(Oakley vs. Aspinwall, 3 N. Y. 547; French
vs. Merrill, 27 App. Div. 612; Converse vs. Mc-
Arthur, 17 Barb. 410; Baldwin vs. McArthur, 17
Barb. 414; Matter of Bingham, 127 N. Y. 296,
311.) Buta judge of the Court of Appeals, unlike
other judges, except justices of the Appellate Divi-

5
THE COURT OF APPEALS.

sion of the Supreme Court, may take part in the
decision of a question which was argued orally in
the court when he was not present and sitting there-
in as a judge. (Code Civ. Pr., sec. 46.)

§ 4. Constitutional restrictions upon jurisdiction.

The opening clause of sec. 7 (above quoted),
whereby the Court of Appeals is declared continued,
would, unless thereafter limited, have transferred to
the continued court the jurisdiction which resided in
the existing court at the adoption of the Consti-
tution. The crowded condition of its calendar made
necessary some further restriction upon its powers,
and these restrictions were imposed by sec. 9 of Art.
VI, which at the same time conferred upon the
Legislature the power of further limitation. The
provisions of sec. 9 are as follows:

“Sec. 9. After the last day of December, 1895,
the jurisdiction of the court of appeals, except
where the judgment is of death, shall be limited to
the review of questions of law. No unanimous de-
cision of the appellate division of the supreme
court that there is evidence supporting or tending to
sustain a finding of fact or a verdict not directed
by the court, shall be reviewed by the court of ap-
peals. Except where the judgment is of death,
appeals may be taken as of right, to said court only
from judgments or orders entered upon decisions of
the appellate division of the supreme court, finally
determining actions or special proceedings, and
from orders granting new trials on exceptions,

6
THE COURT OF APPEALS.

where the appellants stipulate that upon affirmayce
judgment absolute shall be rendered against them.
The appellate division in any department may,
however, allow an appeal upon any question of law
which, in its opinion, ought to be reviewed by the
court of appeals. The legislature may further
restrict the jurisdiction of the court of appeals and
the right of appeal thereto, but the right to appeal
shall not depend upon the amount involved.

“ The provisions of this section shall not apply to
orders made or judgments rendered by any general
term before the last day of December, 1895, but
appeals therefrom may be taken under existing pro-
visions of law.’

§ 5. Statutes regulating jurisdiction.

In the exercise of the power conferred upon it by
this section of the Constitution, the Legislature has
defined by statute the jurisdiction of the court, and
has added in some cases to the constitutional re-
strictions. The statutory provisions affecting the
Court’s jurisdiction are secs. 190 and 191 of the
Code of Civil Procedure, and secs. 517, 519, and
528 of the Code of Criminal Procedure.

Code of Civil Procedure:

“Sec. 190. The jurisdiction of the Court of Ap-
peals in civil actions.

“The court of appeals has exclusive jurisdiction
to review upon appeal every actual determination
made prior to the last day of December, 1895,
at a general term of the supreme court, or by either

i
THE COURT OF APPEALS.

of the superior city courts as then constituted, in
all cases in which, under the provisions of law exist-
ing on said days, appeals might be taken to the
court of appeals. From and after the last day of
December, 1895, the jurisdiction of the court of
appeals shall, in civil actions and proceedings, be
confined to the review upon appeal of the actual
determinations made by the appellate division of
the supreme court in either of the following cases,
and no others:

“1, Appeals may be taken as of right to said
court, from judgments or orders finally determining
actions or special proceedings, and from orders
granting new trials on exceptions, where the appel-
lants stipulate that upon affirmance, judgment abso-
lute shall be rendered against them.

“2. Appeals may also be taken from determina-
tions of the appellate division of the supreme court
in any department where the appellate division
allows the same, and certifies that one or more
questions of law have arisen which, in its opinion,
ought to be reviewed by the court of appeals, in
which case the appeal brings up for review the
question or questions so certified, and no other; and
the court of appeals shall. certify to the appellate
division its determination upon such questions.

“Sec. 191. Limitations, exceptions and condi-
tions.

“The jurisdiction conferred by the last section is
subject to the following limitations, exceptions and

conditions:
8
THE COURT OF APPEALS,

“1. No appeal shall be taken to said court, in any
civil action or proceeding commenced in any court
other than the supreme court, court of claims,
county court, or a surrogate’s court, unless the
appellate division of the supreme court allows the
appeal by an order made at the term which rendered
the determination, or at the next term after judg-
ment is entered thereupon and shall certify that in
its opinion a question of law is involved which
ought to be reviewed by the court of appeals.

“2, No appeal shall be taken to said court from a
judgment of affirmance hereafter rendered in an
action to recover damages for a personal injury,
or to recover damages for injuries resulting in death,
or in an action to set aside a judgment, sale, trans-
fer, conveyance, assignment or written instrument,
as in fraud of the rights of creditors, or in an action
to recover wages, salary or compensation for serv-
ices, including expenses incidental thereto, or dam-
ages for breach of any contract therefor, or in an
action upon an individual bond or individual under-
taking on appeal, when the decision of the appel-
late division of the supreme court is unanimous,
unless such appellate division shall certify that in
its opinion a question: of law is involved which
ought to be reviewed by the Court of Appeals, or
unless in case of its refusal to so certify, an appeal
is allowed by a judge of the court of appeals.

“3. The jurisdiction of the court is limited to a
review of questions of law.

9
THE COURT OF APPEALS.

“4. No unanimous decision of the appellate divi-
sion of the supreme court that there is evidence
supporting or tending to sustain a finding of fact
or a verdict not directed by the court, shall be re-
viewed by the court of appeals.”

Code of Criminal Procedure:

“Sec. 517. An appeal to the supreme court
may be taken by the defendant from the judgment
on a conviction after indictment, except that when
the judgment is of death the appeal must be taken
direct to the court of appeals, and, upon the appeal
any actual decision of the court in an intermediate
order or proceeding forming a part of the judg-
ment-roll, as prescribed by sec. four hundred and
eighty-five, may be reviewed.”

“Sec. 519. An appeal may be taken from a judg-
ment or order of the appellate division of the
supreme court to the court of appeals, in the fol-
lowing cases and no other:

“1, From a judgment affirming or reversing a
judgment of conviction;

“2. From a judgment affirming or reversing a
judgment for the defendant on a demurrer to the
indictment, or from an order affirming, vacating or
reversing an order of the court arresting judgment;

“3. From a final determination affecting a sub-
stantial right of the defendant.”

“ Sec. 528. When the judgment is of death, the
court of appeals may order a new trial, if it be sat-
isfied that the verdict was against the weight of

10

¢
THE COURT OF APPEALS.

evidence, or against law, or that justice requires a
new trial, whether any exception shall have been
taken or not in the court below.”

See also, sec. 771; and L. 1895, c. 601, sec. 20;
L. 1901, c. 466, sec. 1414.

§6. The constitutional theory of the function of the
court.

Before proceeding to consider the construction of
these sections, we should recall the theory of the
court’s function in our judicial system, which the
Constitution reveals. That function, the court itself
has defined. /It is, briefly stated, the function, not
of declaring justice between man and man, but of
settling the law. The court exists, not for the in-
dividual litigant, but for the indefinite body of liti-
gants, whose causes are potentially involved in the
specific cause at issue. The wrongs of aggrieved
suitors are only the algebraic symbols from which —
the court is to work out the formula of justice. |
Nowhere has this view been more clearly stated”
than by Martin, J., in Reed vs. McCord, 160 N. Y.
330, 335: ‘‘ The constitutional convention clearly
entertained the opinion that the continued existence
of the Court of Appeals was justified only by the
necessity that some tribunal should exist with su-
preme power to authoritatively declare and settle
the law uniformly throughout the state. That
court was continued, not that individual suitors
might secure their rights, but that the law should
be uniformly settled, to the end that the people

II
THE COURT OF APPEALS.

might understand the principles which regulated
their dealings and conduct, and thus, if possible,
avoid litigation. It was that necessity alone which
induced the adoption of the provisions for a second
appeal, and the continuance of a single court to
finally determine such principles.”

In the construction of the constitutional restric-
tions upon the court’s jurisdiction, this function of
the court, as thus defined in its own decisions, must
be steadily borne in mind. It explains many seem-
ing anomalies.

§7. The restriction of the court’s jurisdiction, except
in capital cases, to questions of law.

“ After the last day of December, 1895, the ju-
risdiction of the court of appeals, except where
the judgment is of death, shall be limited to the
review of questions of law.”—Constitution, Art.
VI, sec. 9.

“The jurisdiction of the court is limited to the
review of questions of law.’’ — Code Civ. Pr., sec.
191, subd. 3, as amended by 1. 1895, c. 946.

There is thus withdrawn from the court juris-
diction to review any determination of fact, or
any determination involving the exercise of discre-
tion. From this restriction important consequences
have resulted. We shall trace these consequences,
first, as they affect the power to review the reversal
of a judgment or a final order of a referee or of a
court, without a jury; second, as they affect the
power to review the reversal of a judgment in an

12
‘THE COURT OF APPEALS.

action tried before a jury; and, third, as they affect
the power to review the affirmance of a judgment.

§8. Questions reviewable on appeals from reversal
of judgment or final order of court or referee.
Form of order of reversal. Presumption as to
grounds of decision.

Before the adoption of the present Constitution,
the court had the power, where the inferior tribunal
had reversed upon the facts a judgment rendered
by a referee or by a court without a jury, to review
the correctness of the decision. (Vermilyea vs. Pal-
mer, 52 N. Y. 471; Simmons vs. Cloonan, 81 N.
Y. 557; Van Wyck vs. Walters, 81 N. Y. 352;
Knickerbocker Life Ins. Co. vs. Nelson, 78 N. Y.
137, 143; Shultz vs. Hoagland, 85 N. Y. 464.)
In such cases, it was the rule then, as it is now,
that the reversal, unless stated in the order to be
upon the facts, would be presumed to be solely upon
the law; but if the order showed the reversal to be
upon the facts, the Court of Appeals had power to
review the facts for the purpose of declaring
whether or not the reversal was justified. In exer-
cising that power, it was guided by the rule that
in order to sustain a reversal upon the facts of a
judgment of the Special Term or a referee, it must
appear that the proofs so clearly preponderated in
favor of a contrary result that it could be said with
a reasonable degree of certainty that the findings
were erroneous. (Sanger vs. French, 157 N. Y.
213; Foster vs. Bookwalter, 152 N. Y. 166; Bar-

13
THE COURT OF APPEALS.

nard vs. Gantz, 140 N. Y. 249; Devlin vs. Green-
wich Savings Bank, 125 N. Y. 756; Aldridge vs.
Aldridge, 120 N. Y. 613; Baird vs. Mayor, etc.,
96 N. Y. 567; Bloom vs. National Savings & Loan
Co., 152 N. Y. 114; Lowery vs. Erskine, 113 N.
Y. 52; Sherwood vs. Hauser, 94 N. Y. 626; Crane
vs. Baldwin, 55 N. Y. 256; Cowee vs. Cornell, 75
N. Y. 91, 97.)

All this has now been changed. (Nat. Harrow
Co. vs. Bement & Sons, 163 N. Y. 505; Szuchy vs.
Hillside C. & I. Co., 150 N. Y. 219.) Where the
reversal is upon the facts, a review by the Court of
Appeals of the propriety of the decision would vio-
late the command of the Constitution that the
court’s jurisdiction shall be limited to questions
of law. If, therefore, it is made to appear to the
court that the reversal was on the facts, and this
can be shown only by a recital in the order and not
by reference to the opinion (People ex rel. Broad-
way Improvement Co. vs. Barker, 155 N. Y. 322;
Kochler vs. Hughes, 148 N. Y. 507; People ex rel.
Coler vs. Lord, 157 N. Y. 408; People ex rel. Ja-
cobus vs. Van Wyck, 157 N. Y. 495; Queen vs.
Weaver, 166 N. Y. 398; Lannon vs. Lynch, 160
N. Y. 483, 488; Spence vs. Ham, 163 N. Y. 220;
Hinckel vs. Stevens, 165 N. Y. 171; Spies vs. Lock-
wood, 165 N. Y. 481; People ex rel. Durant L. I.
Co. vs. Jeroloman, 139 N. Y. 14; People ex rel.
Steinson vs. Board of Education, 158 N. Y. 125;
Rosenstein vs. Fox, 150 N. Y. 254; Schell vs. The
Mayor, 128 N. Y. 67; Houghkirk vs. Del. & H. C.

14
THE COURT OF APPEALS.

Co., 92 N. Y. 219; Thornton vs. Autenreith, 55 N.
Y. 659; Sheldon vs. Sheldon, 51 N. Y. 354; Ran-
dolph vs. Loughlin, 48 N. Y. 456; Downing vs.
Kelly, 48 N. Y. 433; Titus vs. Orvis, 16 N. Y.
617), the court in obedience to the mandate o}
the Constitution will dismiss the appeal (Bini vs.
Smith, 161 N. Y. 120; Livingston vs. City of Al-
bany, 161 N. Y. 602; Health Department vs. Das-
sori, 159 N. Y. 245, 249; Matter of Thorne, 162
N. Y. 238; Steinway vs. Steinway, 163 N. Y. 183,
187; Spies vs. Lockwood, 165 N. Y. 481). The
court has intimated that it may, in the future, give
effect to the stipulation for judgment absolute, and
affirm the judgment instead of dismissing the ap-
peal, since the effect of a dismissal is to give coun-
sel two opportunities to persuade the court, one be-
fore the new trial is taken, and one afterwards
(Livingston vs. City of Albany, 161 N. Y. 602,

604).

§9. The same subject continued. Power of court to
review a reversal stated to be on the facts, but
really on the law.

Cases have, however, arisen, where the Appel-
late Division of the Supreme Court has certified in
its order that it had reversed a judgment on the
facts, though there were no controverted facts in
the cause, nor conflicting inferences to be drawn
from conceded facts, nor uncontroverted facts not
found in the decision, and hence a reversal on the
facts was impossible. In such cases, the Court of

15
THE COURT OF APPEALS.

Appeals has refused to permit its jurisdiction to be
defeated, but has examined the record for the pur-
pose of ascertaining whether any question of fact
existed on which a reversal could have been found-
ed. If it finds no such question, it treats the re-
versal, notwithstanding the recital, as upon the law,
and entertains the appeal. If, however, the record
discloses any question of fact on which a reversal
could have been founded, the court gives effect to
the recital, and without considering whether a re-
versal was in its judgment proper or improper, dis-
misses the appeal.

§10. The same subject continued.

An instance of the court’s refusal to permit its
jurisdiction to be ousted by an erroneous recital that
the Appellate Division had reversed upon the facts
is Hirshfeld vs. Fitzgerald, 157 N. Y. 166. Speak-
ing by Haight, J., the Court said: “In the body
of the order reversing the judgment entered upon
the decision of the Special Term, the Appellate Di-
vision certifies that the reversal was upon the law
and upon the facts. If it is true that the reversal
was upon the facts as well as the law, then this court
has no jurisdiction to review the order, for, under
the Constitution and Code, our power is now limited
to the review of questions of law except where the
judgment is of death. Upon the claim being made
that there was no controverted question of fact in
the case upon which a reversal upon the facts could
be based, we allowed the argument of the case to

16
THE COURT OF APPEALS.

stand over in order that the attention of the Appel-
late Division might be called to the matter, and
that court have an opportunity to amend the order
if it so desired. That court, as we now under-
stand, has refused to change its order, and we are,
therefore, required to look into the case for the pur-
pose of determining whether there are controverted
facts or inferences to be drawn from conceded facts
upon which a reversal upon the facts could be based.
We have discovered none, and none which were
material were called to our attention by counsel
upon the argument. * * * *

“We have no power to review the facts, but we
have the power to determine whether a question
of fact is involved in the case, and if there is none,
we have jurisdiction to review the law.”

The same ruling was made in Otten vs. Manhat-
tan Railway Co., 150 N. Y. 395, where the Court,
speaking by Vann, J., said: “ An Appellate Court
can not invest itself with jurisdiction to reverse a
lawful judgment free from legal error by the mere
assertion that it reverses upon the facts when the
record shows that there are no questions of fact
upon which to base a reversal. It can not create a
question of fact by declaring that there is one, nor,
by assuming to reverse on the facts, reverse a deter-
mination that does not involve a question of fact.
* * %* * Unless there was a material question
of fact the reversal was an unlawful exercise of ju-
dicial power, and constituted an error that may be
corrected by this court.”

17
THE COURT OF APPEALS.

So in Benedict vs. Arnoux, 154 N. Y. 714, 724,
the Court said:

“The power of the Appellate Division to reverse
upon the facts is limited to cases in which the find-
ings of the trial court are unsupported by testimony,
or are made against the weight of evidence. Where
the findings of the trial court are in accordance
with the conceded facts or the uncontroverted tes-
timony, the Appellate Division is not authorized
to reverse upon the facts, and if it does, a question
of law is presented which this court may properly
review.”

(See, also: Griggs vs. Day, 158 N. Y. 1;
O’Brien vs; East River Bridge Co., 161 N. Y. 539;
Buffalo & Lancaster Land Co., vs. Bellevue Land &
Improvement Co., 165 N. Y. 247; Erie R. R. vs.
Steward, 170 N. Y. 172; Rice vs. Culver, 172 N.
Y. 60, 64.)

It is not essential, however, in order to warrant
a reversal on the facts, that there should be any
conflict in the proof. It is enough that conflicting
inferences could be drawn from unconverted proof
(Fairchild vs. Edson, 154 N. Y. 199; Steinway vs.
Steinway, 163 N. Y. 183, 187, 188; Livingston vs.
City of Albany, 161 N. Y. 602; Edson vs. Parsons,
165 N. Y. 555; Patten vs. Pancoast, 109 N. Y. 625;
Smith vs. Coe, 55 N. Y. 678).

§11. What is a reversal on the facts as distinguished
from one on the law?

Since the court is thus empowered to search the
record in order to ascertain whether a reversal, ap-

18
THE COURT OF APPEALS.

parently upon the facts, of the judgment of the
Special Term or of a referee, was really a reversal
upon the facts, and since such a reversal, unless
stated to be upon the facts, will be presumed to be
upon the law, it becomes important to consider what
is a reversal upon the law and what a reversal upon
the facts under the decisions of the court. This
question seems to be settled by National Harrow
Co. vs. Bement & Sons, 163 N. Y. 505, where the
subject was very fully considered. In that case,
the Referee filed a decision for the plaintiff in the
so-called short form, under sec. 1022 of the Code.
He made no mention in his decision of material
facts pleaded by the defendant and conclusively
proved. The Appellate Division reversed his judg-
ment, upon the ground, as appeared by its opinion,
that these facts, conclusively proved by the defend-
ant, though not referred to in the decision, consti-
tuted a defense, and hence required a_ reversal.
There was no controversy as to these facts. They
had been conclusively established. They rested on
uncontroverted documentary evidence (163 N. Y.
at p. 518). Itis true that the Referee had not been
requested to find them, because his decision was in
the short form. The defeated party had no control
over its contents, nor any right by the submission
of requested findings to indicate to an Appellate
Court the true grounds of the decision. The case
was therefore that of a reversal by the Appellate
Division upon the ground that certain facts con-
clusively proved by the defendant required as mat-

19
THE COURT OF APPEALS.

ter of law a judgment in defendant’s favor. The
Court of Appeals held, however, that since these
facts were not set forth at large upon the face of
the decision, and since the findings actually made
were supported by the evidence, the error was one
of fact and not of law; the Appellate Division, if
it wished to reverse, should have done so upon the
facts; the order being silent as to the grounds
of the decision, the presumption was that the re-
versal was solely upon the law; and there being,
under the definition of questions of law and of fact
propounded by the court, no error of law, the order
of the Appellate Division was reversed, and the
judgment of the Referee affirmed.

§12. Continued.

In other words, the omission of the court to
include in the short form of decision uncontrovert-
ed facts which would have changed the conclusion,
where the facts which it has found are supported by
the evidence, is not error of law. When separate
findings were commonly made, the omission to find
a fact, conclusively proved, was error of law, only
when the finding had been requested and the refusal
excepted to (Sherman vs. Foster, 158 N. Y. 596;
Koehler vs. Hughes, 148 N. Y. 507, 515; Burnap
vs. Nat. Bk. 96 N. Y. 125, 131; Ostrander vs.

20
THE COURT OF APPEALS.

Hart, 130 N. Y. 372; Woodhull vs. Rosenthal, 61
N. Y. 382; Ricard vs. Sanderson, 41 N. Y. 179).
The omission of a court to find upon issues on which
it was not requested to find, was never, in the Court
of Appeals, ground for reversal (Ricard vs. Sander-
son, supra). The repeal of sections 993 and 1023
of the Code has withdrawn from litigants the op-
portunity to make such requests; and in so doing,
it has withdrawn the right to urge as error of law
the omission to find an uncontroverted fact (Nat.
Harrow Co. vs. Bement & Sons, 163 N. Y. 505).
If the findings made are without evidence, the error
justifies the Appellate Division in reversing on the
law. But if the findings made have support in the
evidence, it is not error of law that the court failed
to make other findings, as to which the evidence
was conclusive.

§18. The same subject continued. Enumeration of
possible grounds of a reversal on the law.

In announcing this conclusion, the court has held
(Nat. Harrow Co. vs. Bement & Sons, supra) that
where a reversal of a judgment of a referee or of a
court without a jury, is ordered by the Appellate
Division, and the reversal is upon the law solely,
there are three questions, and three only, open to
review in the Court of Appeals. By implication,

21
THE COURT OF APPEALS.

therefore, it was held that every reversal by the Ap-
pellate Division which is not based upon one or
more of these three questions is, within the mean-
ing of the rule under discussion, a reversal, not upon
the law, but upon the facts. These three questions
are :-—

1. Whether a material error was committed in
receiving or rejecting evidence.

2. Whether the conclusion of law is supported
by the facts found.

3. Whether any material finding of fact is with-
out any evidence to support it.1

If none of these three classes of error exists, then
the reversal is on the facts. It matters not that the
facts necessitating the reversal were established
by uncontroverted evidence, or were even explicit-
ly admitted (unless they appear on the face of
the decision itself, in which case the error falls
within the second of the three classes above stated).
It matters not that the facts admitted or conclusive-
ly established (but not recited in the decision) re-

1 Under subdivision 3, see Shotwell vs. Dixon, 163 N. Y.
43, 47, and cases cited. But it is held that the court, where
the decision is in the short form, will be presumed, if it
dismisses the complaint, to have found all the facts enti-
tling the defendant to that relief, and if there is no evi-
dence to warrant the findings thus presumed, the error is
one of law which may be reviewed by the Court of Ap-
peals, where the order of the Appellate Division is silent
as to the grounds of reversal (Dr. David Kennedy Co. vs.
Kennedy, 165 N. Y. 353, 360).

22
THE COURT OF APPEALS.

quired a reversal as a matter of law, that is, as a
necessary legal consequence. Any reversal, except
for material error in admitting or rejecting evi-
dence, or for failure of the facts found to support
the conclusion drawn from them, or for failure of
evidence to support a material finding, is a reversal
on the facts, and the order should so state. (Nat.
Harrow Co. vs. Bement & Sons, 163 N. Y. 505;
Spence vs. Ham, 163 N. Y. 220, 224; Fritz vs.
Tompkins, 168 N. Y. 524, 530.)

To these three classes there would have been
added under the practice prevailing before the enact-
ment of chapter 688 of the laws of 1894,! a fourth
class, viz: a refusal to make any finding whatever
upon a question of fact, when a request to find
thereupon is seasonably made by either party. By
chapter 688 of the laws of 1894, however, secs. 993
and 1023 of the Code, which had previously au-
thorized a party to submit requests to find, were re-
pealed, and the duty of a court or referee to pass
upon such requests was abrogated (Nat. Harrow
Co. vs. Bement & Sons, 163 N. Y. 505, 514, 521;
Matchett vs. Lindberg, 2 App. Div., 340). It fol-
lows, therefore, that even when the decision is in the
form of express findings, the omission of a court or
referee to pass upon a requested finding is no longer

1In appeals from the Surrogate’s Court, this practice still
prevails (Code Civ. Pr., Sec. 2545).

23
THE COURT OF APPEALS.

reviewable (Nat. Harrow Co. vs. Bement & Sons,
supra). On the other hand, if the court does pass
upon the requested findings, not merely by refusing
to find upon a fact at all, but by a refusal amount-
ing to a denial of the fact (James vs. Cowing, 82
N. Y. 449, 458; Galle vs. Tode, 148 N. Y. 270),
it would seem that the error would still be review-
able, where the fact was conclusively established
and the refusal to find it excepted to. But in such
a case the refusal to find that a fact existed would
be equivalent to the finding of a fact without any
evidence to support it, and, hence, would fall under
the third of the three classes of errors above enum-
erated. Whether the decision is in the short form
or in that of findings, the enumeration of possible
grounds of reversal on the law contained in Nat.
Harrow Co., vs. Bement & Sons, is therefore ex-
haustive,

§ 14. Continued. When order should state that re-
versal was on the facts.

The importance of this subject to the practitioner
requires that emphasis be laid upon it. It has not
infrequently happened, as the court has stated,
(post p. 26) that a reversal which was intended to
be “on the facts” as that phrase has been above ex-
plained, was treated in the Court of Appeals as a

24
THE COURT OF APPEALS.

reversal on the law, because counsel had failed to
recite in the order proposed by them that the re-
versal was on the facts. Either the distinction be-
tween a reversal on the law and one on the facts
was misapprehended, or else the necessity of show-
ing the true grounds of the decision was ignored.
Many a client’s cause has thus been sacrificed which
the insertion of a few words in the order of reversal
would have saved. Unless there exists one of the
three classes of error which justify a reversal on the
law as above defined, the Court of Appeals, where
the order is silent as to the grounds of the decision,
will reverse the order of reversal, and affirm the
judgment of the Special Term or referee. It will
do this, though the opinion clearly indicates that the
reversal was really on the facts, for it will not look
beyond the order (see ante, p. 14: Code Civ. Pr.,
sec. 1338). Even a statement in the order that it is
made upon the grounds stated in the opinion,
which are declared a part thereof, has been held in-
sufficient (Townsend vs. Ball, 167 N. Y. 462, over-
ruling Tolman vs. S. B. & N. Y. R. R. Co., 92 N.
Y. 356, and Snyder vs. Snyder, 96 N. Y. 92). Any
party securing a reversal at the Appellate Division
of a judgment of a referee or of the Special Term
should endeavor to have the order recite that the
reversal was on the facts, unless it was for one of
the three classes of error above enumerated.

25
THE COURT OF APPEALS.

§15. Continued.

How often the rights of litigants have been sac-
rificed by a failure to obey this rule, is attested by
the opinions of the Court.

“ By sec. 1338 of the present Code, upon an ap-
peal to this court from a judgment reversing a judg-
ment entered upon the report of a referee, or from
an order granting a new trial, on such reversal it
must be presumed that the judgment was not re-
versed, or the new trial granted, upon a question of
fact, unless the contrary clearly appears in the rec-
ord body of the judgment or order appealed from.
There is no such statement in the order now before
us. It simply states that there was a reversal and
a new trial directed. We are commanded by the
statute to treat the decision as one not interfering
with the facts found at the trial. Thus it often
happens that judgments of the courts below come
here in such form hat they must be construed to
mean something entirely different from what the
court intended. It is quite probable that this is such
a case. If we were permitted to disregard the stat-
ute and look into the opinion of the court, the
ground of the reversal is made very clear; but the
order and judgment are silent. When a party suc-
ceeds upon an appeal on the sole ground that the
claim is barred by the Statute of Limitations, it is
reasonable to expect that he will be vigilant in see-
ing to it that the order is entered in such form as to
retain the advantages of the decision in his fa-
vor.” (Lannon vs. Lynch, 160 N. Y. p. 488.)

26
THE COURT OF APPEALS.

“Tt is important for counsel in preparing a judg-
ment or order to carry into effect the decision of an
Appellate Division, to see that it is so drawn as to
properly express what the court actually decided.
We have repeatedly called attention to the necessity,
when the reversal is on the facts, or when the af-
firmance is unanimous, of so stating in the order or
judgment, yet cases are constantly coming before
us in which the rights of parties are sacrificed by a
disregard of the practice established by the legisla-
ture or the Court.” (Spence vs. Ham, 163 N. Y.
220, 223.)

“We have no doubt that the order does not truly
express the action of the court, but the statute de-
termines its legal effect, and we must either disre-
gard the statute or assume that the court below
made a decision which in fact it did not make, but
which the statute declares as matter of law that it
did make. It frequently happens, therefore, that
appeals of this character have to be decided in this
court contrary to the real merits of the case, for
the sole reason that the order does not truly express
the real judgment of the court below, but under
the mandate of the statute misrepresents the decision
as actually made. If the order in this case expressed
the decision of the court below as made, then it
would not be reviewable at all in this court, since
we have no power now to review an order reversing
the judgment of the trial court and granting a new
trial upon the facts. In such a case the remedy of

27
THE COURT OF APPEALS.

the defeated party is to take the new trial. But here
the legal import of the order is that the judgment
was reversed upon the law, and that is the only rea-
son that enables the defeated party to come to this
court. We have often called the attention of coun-
sel upon the argument to the danger to which a
respondent is exposed in this court when the order
is in the form of the one now before us, in order
to give him an opportunity to have the order
amended, so as to truly express the decision of the
court below. We have not always been successful
in impressing upon counsel the danger of such a
situation, and as the practice is, or ought to be,
familiar to counsel, it is not apparent why the court
should always be expected to interfere with the
regular course of the argument by pointing out the
danger.” (Snebley vs. Conner, 78 N. Y. 218: Liv-
ingston vs. City of Albany, 161 N. Y. 602; Queen
vs. Weaver, 166 N. Y. 400.)

§16. Continued.

That the court was justified in stating that the
practice in this regard ought to be familiar to coun-
sel, is evidenced by a long line of decisions en-
forcing the statutory presumption (Dannhauser vs.
Wallenstein, 169 N. Y. 199; Queen vs. Weaver,
166 N. Y. 398; Fritz vs. Tompkins, 168 N. Y. 524,
530; Hinckel vs. Stevens, 165 N. Y. 171; Matter
of Keefe, 164 N. Y. 352; Neuman vs. N. Y. Mut.
S. & L. Ass’n, 164 N. Y. 248; Van Beuren vs.
Wotherspoon, 164 N. Y. 368; Nat. Harrow Co. vs.

28
THE COURT OF APPEALS.

Bement & Sons, 163 N. Y. 505; Spence vs. Ham,
163 N. Y. 220; Shotwell vs. Dixon, 163 N. Y. 43,
47; Spellman vs. Looschen, 162 N. Y. 288; Smith
vs. Syracuse Improvement Co., 161 N. Y. 484; Lan-
non vs. Lynch, 160 N. Y. 483; Gannon vs. Mc-
Guire, 160 N. Y. 476; People vs. Adirondack Ry.
Co., 160 N. Y. 220; Petrie vs. Trustees of Ham-
ilton College, 158 N. Y. 458; Canda vs. Totten, 157
N. Y. 281; Parker vs. Day, 155 N. Y. 383; Bo-
meisler vs. Forster, 154 N. Y. 229; Riendeau vs.
Bullock, 147 N. Y. 269; Mack vs. Colleran, 136 N.
Y. 617; Farmer vs. Seabury, 135 N. Y. 50; Cudahy
vs. Rhinehart, 133 N. Y. 248; Hannigan vs. Al-
len, 127 N. Y. 639; Roberts vs. Tobias, 120 N. Y.
1, 665; Inglehart vs. Thousand Island Hotel Co.,
109 N. Y. 454; Lewis vs. Burton 106 N. Y. 70;
Cook vs. Rindskopf, 105 N. Y. 476; Davis vs. Leo-
pold, 87 N. Y. 620; Hamlin vs. Sears, 82 N. Y.
327; Weyer vs. Beach, 79 N. Y. 409; Krekeler vs.
Thaule, 73 N. Y. 608; Lanigan vs. N. Y. Gaslight
Co., 71 N. Y. 29; Foster vs. Persch, 68 N. Y. 400;
Thornton vs. Autenreith, 55 N. Y. 659; Sheldon vs.
Sheldon, 53 N. Y. 354).

The rule applies, however, only to the determina-
tion of a court, and not to that of a board (People
ex rel. Village of Brockport vs. Sutphin, 166 N. Y.
163, 169), and only, it seems, to final, as distin-
guished from interlocutory, judgments (Dorches-
ter vs. Dorchester, 121 N. Y. 156).

29
THE COURT OF APPEALS.

§ 17. Questions reviewable on appeal from reversal
of final order,

The power of the Court of Appeals to review
a reversal by the Appellate Division of a final order
in a special proceeding, is determined by the same
considerations that govern its power to review the
reversal of a judgment of the court or a referee. If
the reversal is on the facts, in a case where there
are controverted facts or where conflicting infer-
ences may be drawn from conceded facts, the Court
of Appeals will dismiss the appeal or affirm the or-
der. If, however, the order does not show that the
reversal is on the facts, the presumption in the case
of appeals from final orders in special proceedings,
as in the case of appeals from judgments, is that
the reversal is on the law only. (People ex rel.
Man. Ry. Co. vs. Barker, 165 N. Y. 312; Matter of
Keefe, 164 N. Y. 352; Matter of Chapman, 162
N. Y. 456; Post, 73, 74.)

§18. Continued: Review of reversal of discretionary
order in mandamus or certiorari proceedings.

There seems to be an exception to this rule, how-
ever, in cases where the Appellate Division, while
approving the facts as found, may have reversed
a final order, in the exercise of discretion. If such
a discretion exists, it will be presumed to have been
exercised, unless the contrary appears, and hence
the Court of Appeals will decline to entertain the
appeal. This presumption seems to have been rec-

30
THE COURT OF APPEALS.

ognized chiefly in proceedings for mandamus or
for a common law writ of certiorari (People ex
rel. N. Y. C.& H. R. R. R. Co. vs. Board of Taxes,
166 N. Y. 154; People ex rel. Durant L. I. Co. vs.
Jeroloman, 139 N. Y. 14; People ex rel. Jacobus vs.
Van Wyck, 157 N. Y. 495; Post, pp. 73, 75).

It is difficult in our judgment to reconcile these
decisions with those which hold that sec. 1,338 of
the Code applies not only to judgments in actions,
but.to final orders in special proceedings, and that
a reversal, unless stated to be upon the facts, will
be presumed to be upon the law. The true rule,
it is submitted, is that where a writ of mandamus
or certiorari, or other discretionary final relief, has
been refused at Special Term, and the refusal af-
firmed, it will be presumed, in support of the deci-
sion, that the refusal and affirmance were on dis-
cretionary grounds, but that where the relief was
granted at Special Term, and the decision reversed
at the Appellate Division, it will be presumed, un-
less the contrary appears, that the reversal was sole-
ly onthe law. The cases, however, seem to have ex-
tended the presumption that the refusal of relief
was discretionary to cases of reversal as well as to
cases of affirmance (See cases cited, supra, and
post, p. 73), though there are some exceptions
(People ex rel. Feeny vs. Board, 156 N. Y. 36, 43,
44; Wetmore vs. Wetmore, 162 N. Y. 503). Of
course, if the order is intermediate, and not final,
sec. 1,338 of the Code has no application, and hence
on appeals from such orders the presumption is,

31
THE COURT OF APPEALS.

whether the case be one of affirmance or of re-
versal, that the decision below was based on dis-
cretionary grounds (post, pp. 69, 70). But there
is an inconsistency in extending that presumption
to the reversal of final orders.

§19. Review by Court of Appeals of reversal in jury
cases.

We have thus far considered the court’s power
to review the facts where the judgment, reversed on
the facts at the Appellate Division, was rendered
by a referee or the court without a jury, and we
have seen that no such power exists under the
amended Constitution, though it did exist before
that Constitution was adopted. On the other hand,
where a judgment rendered after trial before a jury,
was reversed on the facts, i. e., on an appeal from
an order denying a motion for a new trial, no power
to review the correctness of such reversal ever re-
sided in the Court of Appeals. The present Con-
stitution, therefore, has not changed the law in
respect of appeals from jury trials, except that it
has given a constitutional sanction to the rule which
prohibited the Court of Appeals, in such cases, from
reviewing the facts. This limitation upon the
court’s jurisdiction makes it essential that the order
of the Appellate Division reversing a judgment in
an action tried before a jury should show not mere-
ly that the judgment was reversed upon the law,
but that it was affirmed as to the facts. In an

32
THE COURT OF APPEALS.

action tried before the Court without a jury or be-
fore a referee, the presumption is, unless the con-
trary be shown, that a reversal was on the law only.
But in actions tried before a jury the rule is differ-
ent (Schryer vs. Fenton, 162 N. Y. 444; Goodwin
vs. Conklin, 85 N. Y. 21). In such actions an ap-
peal from the judgment brings up for review at the
Appellate Division only questions of law raised by
exceptions. The facts are reviewed, if at all, upon
an appeal from an order denying a motion for a new
trial, made upon the ground that the verdict is for
excessive or for insufficient damages or against the
weight of the evidence. If, therefore, there has been
an appeal from an order denying a motion made on
those grounds, for a new trial, as well as an ap-
peal from the judgment, and the Appellate Division
has reversed both the order and the judgment, the
Court of Appeals, if it were to entertain the appeal,
would be passing upon the propriety of the Appel-
late Division’s reversal upon the facts; and this,
as a court restricted to the consideration of questions
of law, it has no power to do. In all such cases,
therefore, to permit a review by the Court of Ap-
peals of the order of reversal, the order must show
that while the judgment was reversed, the order de-
nying the motion for a new trial was affirmed, or
that the appeal from such order was dismissed
(Hoes vs. Edison General Electric Co., 150 N. Y.
87; Henavie vs. N. Y. C.& H. R. R. Co., 154 N. Y.
278; Wunch vs. Shankland, 170 N. Y. 573; Chap-
man vs. Comstock, 134 N. Y. 509; Mickee vs. W.

33
THE COURT OF APPEALS.

M. & R. M. Co., 144 N. Y. 613; Wiliams vs. D. L.
& W. R. R. Co., 127 N. Y. 643; Schryer vs. Fen-
ton, 162 N. Y. 444; Pharis vs. Gere, 112 N. Y.
408; Harris vs. Burdett 73 N. Y. 136; Snebley vs.
Conner, 78 N. Y. 218; Caponigri vs. Altieri 164
N. Y. 614; Albring vs. N. Y. C. & H. R. R. Co.,
166 N. Y. 288; Bank of China, Japan & The Straits
vs. Morse, 168 N. Y. 458; Duryea vs. Vosburgh,
121 N. Y. 57, 63; Edgecomb vs. Buckhout, 146
N. Y. 332; Cooke vs. Underhill Mfg. Co., 138 N.
Y. 610; Courtney vs. Barker, 60 N. Y. 1; Dodge vs.
Mann, 85 N. Y. 643), or that the judgment and
order were reversed on the law only, the court hav-
ing examined the facts and found no error therein
(Judson vs. Central Vermont R. R. Co., 158 N.
Y. 597). But merely to state that the reversal was
on the law only, without also stating that on the
facts the order was approved, or that the appeal
from such order was dismissed, is not enough (Al-
bring vs. N. Y. C. & H. R. R. Co., 166 N. Y. 287,
288; Williams vs. D. L. & W. R. R. Co., 127 N.
Y. 643; Mickee vs. Walter Wood Mowing & Reap-
ing Machine Co., 144 N. Y. 613). In other words,
it must appear, not merely that the Appellate Di-
vision omitted to consider the facts, contenting
itself with a reversal on the law, but that it consid-
ered the facts and approved them, or at least dis-
missed the appeal from the order denying a motion
for a new trial. The reason is that every litigant
is entitled to the judgment of the Appellate Division
on the facts, and that to permit a review by the

34
THE COURT OF APPEALS.

Court of Appeals where the Appellate Division
had reversed on the law without attempting to con-
sider the facts, might deprive the litigant of that re-
view of the facts to which the law entitles him.

“Though the reversal was solely on questions of
law the defendant was entitled to have the Appel-
late Division review, not only the questions of law
presented by the case, but also the questions of fact
determined by the jury, and an order granting a
new trial is appealable to this court only where the
Appellate Division has examined the facts and af-
firmed the verdict of the jury thereon. In this case
the order recites that the court examined the ques-
tions of fact as to the other issues in the case and
found no error therein, but the defendant was en-
titled to have the questions of fact reviewed and
passed on by the Appellate Division not only as to
the other issues in the case, but also as to those dis-
posed of by that court as matters of law.”’ (Al-
bring vs. N. Y. C.& H. R. R. R. Co., 166 N. Y.
288; see also Mickee vs. Walter Wood Mowing &
Reaping Machine Co., 144 N. Y. 613; Williams vs.
D.L. & W. R. R. Co., 127 N. Y. 643.)

§ 20. Continued.

Of course, if the appeal to the Appellate Division
in a jury cause, is from the judgment only, and
not from an order denying a motion for a new trial,
it is unnecessary to state in the order of reversal the
grounds of the decision. On such an appeal, only
errors of law, duly excepted to, are open to review,

35
THE COURT OF APPEALS.

and hence there are no other errors on which the
reversal could be founded. (Caponigri vs. Altieri,
165 N. Y. 255, 258; Thurber vs. Harlem B. M. &
T. R. R. Co, 60 N. Y. 326; Collier vs. Collins, 172
N. Y. 99, 101.)

For the same reasons an order affirming an order
setting aside a verdict and granting a new trial on
the minutes is not appealable, where the motion was
not based solely upon exceptions, and hence may
have been granted by the trial judge in the exercise
of his discretion on the facts. (Kennicutt vs. Par-
malee, 109 N. Y. 650.)

§ 21. Continued.

If the Appellate Division declines to hear an ap-
peal from an order denying a motion for a new
trial on the ground that the appeal is not properly
before it, the Court of Appeals, while it would have
no power to review the manner of the exercise of
jurisdiction by the Appellate Division on such an
appeal, may review the refusal to exercise it. If
the court decides that the appeal was properly be-
fore the Appellate Division, it will remit the cause
to that tribunal with directions to consider the ques-
tions brought up by the appeal (Taylor vs. Smith,
164 N. Y. 399; Fox vs. Matthiessen, 155 N. Y. 177
and compare, Hanover Fire Ins. Co., vs. Tomlinson,
58 N. Y. 215, and cases cited; Russell vs. Randall,
123 N. Y. 436; Jennison vs. Citizens’ Sav. Bk., 85
Wy. ¥.§403 N.Y. dee Co, ye. N. W Ins: Co, 23
N. Y. 357). In the first of the cases cited, the jury

36
THE COURT OF APPEALS.

having rendered a verdict in favor of the plaintiff,
a motion for a new trial was made by the defend-
ant and denied, and an order entered. Subsequent-
ly judgment was entered, from which the defendant
appealed to the Appellate Division, stating in the
notice of appeal his intention “to bring up for re-
view before this Court the order denying appellant’s
motion for a new trial.” The plaintiff moved that
court to strike from the notice of appeal the state-
ment of defendant’s intention to bring up for re-
view the order denying the motion for a new trial,
and the court granted the motion, holding that the
order was not intermediate within the meaning of
sec. 1316 of the Code. It thereupon affirmed the
judgment. The Court of Appeals held that this
construction of sec. 1316 of the Code was er-
roneous. The order dismissing the appeal was
therefore reversed, and the case remitted to the Ap-
pellate Division to consider the questions brought
up by the notice of appeal that were not passed upon
by that Court.

§ 22. Continued. Rule in mandamus proceedings aft-
er trial of issues arising on return to alterna-

tive writ.

The same rule which governs the power of the
Court to review an order of the Appellate Division
reversing a judgment and order denying a motion
for a new trial in an action tried before a jury, ap-
plies also in a mandamus proceeding where the is-
sues raised by the alternative writ and the return

37
THE COURT OF APPEALS.

thereto have been tried before a jury, and the pro-
ceeding has terminated in a final order directing the
writ to issue and denying a motion for a new trial.
(People ex rel. McDonald vs. Clausen, 163 N. Y.
523.)

In the case cited, the Court said:

“The issue joined upon an alternative writ of
mandamus must be tried by a jury, as if it was an
issue joined in an action in which the complaint
demands judgment for a sum of money. (Code
Civ. Pro., sec. 2083.) The verdict rendered has
the same force and effect as in such an action and
can not be treated merely as advisory to the court.
(People ex rel. Hanrahan vs. Board of Metropoli-
tal Police, 26 N. Y. 316; People ex rel. D. W. &
P. R. R. Co., vs. Batchellor, 53 N. Y. 128, 1373
People ex rel. Coveney vs. Keary, 44 App. Div.,
449, 453; affirmed in 1601 N. Y. 648, on opinion be-
low.)

“The Appellate Division had jurisdiction to re-
verse upon the ground that the verdict rendered was
against the weight of the evidence, and it does not
appear from the record that the reversal was not
based upon that ground. It follows that we have
no jurisdiction to review the appeal. (Chapman
vs. Comstock, 134 N. Y. 509, 512; and cases there
cited; Mickee vs. W. M. & R. M. Co., 144 N. Y.
613; Hoes vs. Edison Gen. El. Co., 150 N. Y. 87;
Canavan vs. Stuyvesant, 154 N. Y. 84; Henavie vs.
N. Y¥. Co.& H.R. R. R. Co, 154 N. Y. 278; Chap-

38
THE COURT OF APPEALS.

man vs. Lynch, 156 N. Y. 551; Judson vs. C. V.
R. R. Co. 158 N. Y. 597.)”

§ 23. Continued. Rule in criminal causes,

The same rule applies also in criminal causes.
“An order of reversal in a criminal case that does
not, upon its face exclude the possibility that it was
based upon an examination of the facts or made as
matter of discretion, presents no question of law
reviewable by the Court of Appeals.” (People vs.
O’Brien, 164 N. Y. 57; see also People vs. Mitchell,
142 N. Y. 639; People vs. Stevens, 104 N. Y. 667;
People vs. Conroy, 97 N. Y. 62; People vs. Boas,
92 N. Y. 560.)

In People vs. O’Brien, supra, the Court said:

“The order does not state upon what ground or
for what reason the judgment was reversed. The
defendant was entitled to have the facts examined
upon the appeal, and we can not say that the re-
versal did not proceed upon that ground. If the
court below reversed upon some view of the facts,
as it might, this court has no power to review the
decision since our jurisdiction is expressly limited
to questions of law. We have no power to review
a judgment or reversal in a criminal case unless it
appears affirmatively in the body of the order that
the court below has exercised its power and dis-
cretion to review the facts, and that, being satis-
fied with the judgment in that respect, the reversai
was ordered for error of law only. Inasmuch as
the order in this case does not, upon its face, ex-

39
THE COURT OF APPEALS.

clude the possibility that it was based upon an ex-
amination of the facts, or made as matter of dis-
cretion, no question of law is presented by the ap-

peal.”

§ 24. Review by the Court of Appeals of Judgments of
Affirmance rendered by a divided Appellate Di-
vision. Questions reviewable on such an ap-
peal,

Where a judgment has been affirmed by the Ap-
pellate Division, the restriction of the Court of Ap-
peals to questions of law prohibits it from consid-
ering the question whether the verdict or the deci-
sion is contrary to the weight of evidence. But that
power did not exist even before the adoption of the
present Constitution. (Hewlett vs. Elmer, 103 N.
Y. 165; Goodfellow vs. The Mayor, too N. Y. 15;
Kenney vs. City of Cohoes, 100 N. Y. 623; Lyon
vs. Hersey, 100 N. Y. 641; Bigelow vs. Legg, 102
N. Y. 652; Bullock vs. The Mayor, 99 N. Y. 654;
Learned vs. Tillotson, 97 N. Y. 1; Stilwell vs. Mut-
ual Life Insurance Co., 72 N. Y. 385; Potter vs.
Carpenter, 70 N. Y. 74; Dayton vs. Borst, 31 N.
Y. 435.) Before that time, however, the court did
have the power to determine whether there was any
evidence to support the judgment. (White vs. Ben-
jamin, 150 N. Y. 258; Crim vs. Starkweather, 136
N. Y. 635; People vs. Ledwon, 153 N. Y. 10; Peo-
ple vs. Owens, 148 N. Y. 648; Lowenthal vs. Low-
enthal, 157 N. Y. 236; Eames Vacuum Brake Co.
vs. Prosser, 157 N. Y. 289; Yale vs. Curtis, 151 N.

40
THE COURT OF APPEALS.

Y. 598, 607; Healy vs. Clark, 120 N. Y. 642; Ruth.
erford vs. Schattman, 119 N. Y. 604; Hewlett vs.
Elmer, 103 N. Y. 165; Meacham vs. Burke, 54 N.
Y. 217; Burgess vs. Simonson, 45 N. Y. 225; Da-
vis vs. Spencer, 24 N. Y. 386; Code Civil Procedure,
sec. 1337, prior to amendment of 1895.) This pow-
er it still retains where the affirmance is not unan-
imous. It may, in cases of affirmance by a divided
Appellate Division, consider, not whether the judg-
ment is against the weight of evidence, but whether
it is supported by amy evidence. (Beck vs. Cath-
olic University, 172 N. Y. 387, 393; Matter of Ran-
del, 158 N. Y. 216; Castleman vs. Mayer, 168 N. Y.
354; Fritz vs. Tompkins, 168 N. Y. 524; National
Bank of Deposit vs. Rogers, 166 N. Y. 380; Cassidy
vs. Uhlman, 170 N. Y. 505, 514; Ostrom vs. Greene,
161 N. Y. 353; Fairchild vs. Edson, 154 N. Y. 199;
Eames Vacuum Brake Co. vs. Prosser, 157 N. Y.
289; Sickles vs. Flanagan, 79 N. Y. 224.)

“Upon an appeal from a non-unanimous affirm-
ance by the Appellate Division, the record may be
examined in order to ascertain whether there is any
evidence which upon any reasonable view will sus-
tain a verdict, and when the undisputed facts in con-
nection with the testimony of the plaintiff, when
supported by every inference that can be drawn
therefrom, do not warrant a verdict in his favor, a
question of law arises reviewable by the Court of
Appeals.’ (Jerome vs. Queen City Cycle Co., 163
N. Y. 351.) The evidence in support of the ver-
dict must be more than a mere scintilla. (Hudson

41
THE COURT OF APPEALS.

vs. Rome, Watertown & O. R. R. Co., 145 N. Y.
408 ; Hemmens vs. Nelson, 138 N. Y. 517; Linkauf
vs. Lombard, 137 N. Y. 417; Laidlaw vs. Sage, 158
N. Y. 93, 94, 96; Johnson vs. N. Y. C.& H.R. R.
R. Co., 173 N. Y. 83.) But the Court of Appeals,
though it may reverse if the evidence is a mere scin-
tilla, may not reverse on the ground that the trial
judge in the exercise of his discretion should have
granted a new trial. (McDonald vs. Metropolitan
St. Ry. Co., 167 N. Y. 66; Place vs. N. Y. C. & H.
R.R. R. Co., 167 N. Y. 345; Oldfield vs. N. Y. & H.
R. R. R. Co., 14 N. Y. 310; Catlin vs. Pond, ror N.
Y. 649; Jung vs. Keuffel, 144 N. Y. 381; Link vs.
Sheldon, 136 N. Y. 1; Fealey vs. Bull, 163 N. Y.
397.) In the recent case of McDonald vs. Metro-
politan St. Ry. Co., supra, the court said: “ The
rule that a verdict may be directed whenever the
proof is such that a decision to the contrary might
be set aside as against the weight of evidence would
be both uncertain and delusive. There is no stand-
ard by which to determine how the verdict may thus
be set aside. It depends upon the discretion of the
court. The result of setting aside the verdict and
the result of directing one are widely different and
should not be controlled by the same conditions and
circumstances. In one case there is a new trial; in
the other, the judgment is final. One rests in dis-
cretion; the other upon legal right. One involves a
mere matter of remedy or procedure, the other de-
termines substantive and substantial rights. * * *
We think it cannot be correctly said in any case

42
THE COURT OF APPEALS.

where the right of trial by jury exists and the evi-
dence presents an actual issue of fact, that the court
may properly direct a verdict. So long as a ques-
tion of fact exists it is for the jury and not for the
court. If the evidence is insufficient, or if that
which has been introduced is conclusively answered,
so that, as a matter of law, no question of credi-
bility or issue of fact remains, then the question be-
ing one of law, it is the duty of the court to deter-
mine it. But whenever a plaintiff has established
facts or circumstances which would justify a finding
in his favor, the right to have the issue of fact de-
termined by a jury continues, and the case must ul-
timately be submitted to it.”

§ 25. Continued. Necessity for an exception.

But even where there is a total absence of proof,
in order to warrant a review of the question by the
Court of Appeals, the ruling of the trial court
submitting the issue to the jury, or the finding of
the court or referee challenged as without evidence,
must have been duly excepted to (Sigua Iron Co. vs.
Brown, 171 N. Y. 488, 506; Wangner vs. Grimm,
169 N. Y. 421, 429; Hopkins vs. Clark, 158 N. Y.
299; Donovan vs. Clark, 138 N. Y. 631; Turner vs.
Weston, 133 N. Y. 650; Drake vs. N. Y. Iron Mine,
156 N. Y. go). It is not necessary, however, in
order to authorize a review by the Court of Ap-
peals of the question whether there is any evidence
to sustain a finding or a verdict, that there should
be a certificate in the case that it contains all the

43
THE COURT OF APPEALS.

evidence (Halpin vs. Phoenix Ins. Co., 118 N. Y.
165; Brayton vs. Sherman, 119 N. Y. 623; Rosen-
stein vs. Fox, 150 N. Y. 354).

§26. How far may the Court of Appeals consider
facts not embodied in the decision, for the
purpose of reversing a judgment, where the
Appellate Division was divided? How far for
the purpose of affirming a judgment?

The foregoing statement of the law applies where

a finding made by the trial judge or referee either

in the form of an express finding of fact or in the

form of a statement of fact in a short decision is
without any evidence to support it. Cases, how-
ever, may often arise where the findings as made
are sustained by evidence, and the grievance is that
they should have been accompanied by other find-
ings which would have changed the result. In such
cases the rule is that no fact may be considered by
the Court of Appeals for the purpose of reversing
the judgment unless it either appears in the decision,
or, according to the practice previously prevailing,
was requested to be found upon uncontroverted evi-
dence (Sherman vs. Foster, 158 N. Y. 596; Koeh-
ler vs. Hughes, 148 N. Y. 507, 575; Ostrander vs.

Hart, 130 N. Y. 372; Burnap vs. National Bank, 96

N. Y. 125, 131; Thomson vs. British Bank of North

America, 82 N. Y. 1; Woodhull vs. Rosenthal, 61 N.

Y. 382; Baker vs. Spencer, 47 N. Y. 562).1 | And

1 The practice as previously prevailing still governs appeals
from the Surrogate’s Court where requests to find may still
be submitted. (Code Civil Procedure, section 2545.) In

44
THE COURT OF APPEALS.

as there can be no requests to find, since the adop-
tion of chapter 688 of the laws of 1894, by which
the short form of decision was adopted, it results
that at the present time no fact can be considered by
the Court of Appeals for the purpose of reversing a
judgment unless it appears in the decision aself.
(National Harrow Co. vs. Bement & Sons, 163 N.
Y. 505.) In other words, a fact established by
uncontroverted evidence will not be noticed by the
court for the purpose of reversing a judgment, even
where the Appellate Division was not unanimous,
unless it is incorporated in the findings or the deci-
sion. The omission to give effect to a fact thus es-
tablished, is not an error of law, but is an error to
be corrected, if at all, by the tribunal that passes on
the facts (ante, p. 21). Just as there are but
three grounds on which a judgment of a court or
referee may be reversed by the Appellate Division
on the law, so, where the Appellate Division has af-
firmed the judgment, there are but three grounds
on which the Court of Appeals may reverse the af-
firmance, viz: a material error in admitting or re-
jecting evidence; the failure of the facts found to
‘support the conclusion drawn from them; or a
lack of evidence to support a material finding. A
reversal on any other ground would be on the facts
(National Harrow Co. vs. Bement & Sons, 163 N.

such cases, therefore, the failure to find one way or the other,
upon a controverted fact, or the refusal to find a fact con-
clusively established, when a request for the finding was sea-
sonably made, would be error of law.

45
THE COURT OF APPEALS.

Y. 505; Matteson vs. Palser, 173 N. Y. 404, 413).
To avoid misapprehension let it be said again:
This rule does not mean that the court may
not consider the evidence for the purpose of de-
termining whether a finding made by the trial judge
and affirmed by a divided Appellate Division, is
supported by any evidence. It simply means that
where the findings made are supported by the evi-
dence, the omission to make other findings which
might have varied the ultimate result, will not be
error of law.

On the other hand, for the purpose of affirming a
judgment, any fact warranted by the evidence will
be considered whether or not it was incorporated in
the findings or the requested findings. But no find-
ings will be implied if inconsistent with the findings
expressed (Armstrong vs. Dubois, 90 N. Y. 95,
99). The respondents, not having appealed, are
bound by the findings of fact made by the trial
court, and may not be heard to challenge their cor-
rectness (Cox vs. Stokes, 156 N. Y. 491), and if
the findings are inconsistent, the appellate court
will adopt those most favorable to the appellant
(Isham vs. Post, 168 N. Y. 531, 532; Parsons vs.
Parker, 159 N. Y. 16; Israel vs. Manhattan Ry. Co.,
158 N. Y. 624; Conselyea vs. Blanchard, 103 N. Y.
231; Bonnell vs. Griswold, 89 N. Y. 127; Wahl vs.
Barnum, 116 N. Y. 87, 99; Bennett vs. Bates, 94
N. Y. 354, 367; Schwinger vs. Raymond, 83 N.
Y. 192; Health Dep’t vs. Purdon, 99 N. Y. 237,
243).

46
THE COURT OF APPEALS.

§ 27. How far questions of law may be considered if
not raised in the court below.

For the purpose of reversing a judgment, the.
Court of Appeals will consider no question that
was not urged or considered in the court below.
(Dodge vs. Cornelius, 168 N. Y. 241, 245; Quin-
lan vs. Welch, 141 N. Y. 158; Werner vs. City of
Rochester, 149 N. Y. 563, 565; Snider vs. Snider,
160 N. Y. 151, 155; Purdy vs. Erie R. R. Co., 162
N. Y. 42, 51; Martin vs. Home Bank, 160 N. Y.
190, 199; Oliphant vs. Burns, 146 N. Y. 236; Flan-
drow vs. Hammond, 148 N. Y. 129; Gillies vs. Im-
provement Co., 147 N. Y. 420; Best vs. Manhattan
Ry. Co., 125 N. Y. 697; Smith vs. Smith, 125 N.
Y. 224; Adams vs. Irving National Bank, 116 N. Y.
606; Salisbury vs. Howe, 87 N. Y. 128; Binsse vs.
Wood, 37 N. Y. 528.) But though a constitution-
al question may not be raised for the first time on
appeal where only private rights are involved
(Dodge vs. Cornelius, 168 N. Y. 241), the rule,
it seems, is otherwise where public interests would
suffer if the question were ignored (Mass. Nat. Bk.
vs. Shinn, 163 N. Y. 360).

If, however, a question has been raised and an
exception taken at the trial court, the mere fact
that the point was not argued on the intermediate
appeal, will not, it seems, deprive the appellant of
the right to urge it in the Court of Appeals (Cohn
vs. Goldman, 76 N. Y. 284; Ross vs. Caywood,
162 N. Y. 259, 264; Aldridge vs. Aldridge, 120

47
THE COURT OF APPEALS.

N. Y. 614; Hollahan vs. Metropolitan St. Ry. Co.,
73 App. Div. 169).
§ 28. Continued.

On the other hand, for the purpose of affirming a
judgment, the court will consider any question, even
though it was not urged in the court below, if the
objection is not one that could have been obviated
at the trial. (Scott vs. Morgan, 94 N. Y. 508,
515; Simar vs. Canaday, 53 N. Y. 298; Allard vs.
Greasert, 61 N. Y. 4.) For the same reason, rec-
ord evidence not in the return, may be read by the
Court of Appeals in support of a decision, but not
to secure a reversal. (People ex rel. Warschauer
vs. Dalton, 159 N. Y. 235, 239; Dunham vs. Town-
send, 118 N. Y. 281; Atlantic Ave. R. R. Co. vs.
Johnson, 134 N.-Y. 375; Day vs. Town of New
Lots, 107 N. Y. 148; Matter of Cooper, 93 N. Y.
507; Wines vs. The Mayor, 70 N. Y. 613.)

§ 29. Limitation of the foregoing rules to cases of af-
firmance by a divided Appellate Division.

The rules above stated apply where the affirmance
at the Appellate Division is not unanimous. If,
however, the affirmance at the Appellate Division is
unanimous, the power of the Court of Appeals to
consider whether there is any evidence to support
the judgment has been withdrawn. This restric-
tion upon its jurisdiction has led, as we shall see
later, to most important results.

48
THE COURT OF APPEALS.
§ 30. Review of discretionary decisions.

The limitation of the court’s jurisdiction to ques-
tions of law excludes also the power to review an
order or judgment resting in discretion. (White
vs. Benjamin, 150 N. Y. 258.) Even before the
adoption of the present Constitution, the power to
review discretionary orders or judgments was by
statute denied to the court, except, indeed, where
the discretion was abused (Forrest vs. Forrest, 25
N. Y. 501; Matter of Holbrook, 99 N. Y. 540; Mar-
ket National Bank vs. Pacific National Bank, 102
N. Y. 464; Roberts vs. N. Y. El. Co., 155 N. Y. 31,
40). As was said in Forrest vs. Forrest (supra),
“to sustain an appeal from an order resting in judi-
cial discretion, the power must be shown to have
been arbitrarily exercised. Otherwise, the law does
not contemplate a review of such decisions by the
Court of Appeals.”

§ 31. Continued. Decisions held to be discretionary.

The discretionary character of the relief granted
in the court below has been held by the Court of
Appeals to bar its right to review in a great
variety of cases. Thus, since such an order rests in
discretion, the court has no power to review an or-
der denying a motion for a new trial on the ground
of newly discovered evidence (White vs. Benjamin,
150 N. Y. 258; Smith vs. Platt, 96 N. Y. 635;
Meltzer vs. Doll, 91 N. Y. 365; Dalrymple vs. Hun-
num, 54 N. Y. 654; Tracy vs. Altmyer, 46 N. Y.
598). It has no power to review an order grant-

49
THE COURT OF APPEALS.

ing or refusing a new trial on the ground that a
verdict is for excessive or insufficient damages,
(Catlin vs. Pond, 101 N. Y. 649; Link vs. Sheldon,
136 N. Y. 1; Jung vs. Keuffel, 144 N. Y. 381;
Campbell vs. Page, 50 N. Y. 658; Hayes vs. Ball, 72
N. Y. 418, 422; Hayden vs. Florence S. M. Co.,
54 N. Y. 221; Standard Oil Co. vs. Amazon Insur-
ance Co., 79 N. Y. 506), or on the ground that a
verdict is against the weight of evidence (Baldwin’s
Bank vs. Butler, 133 N. Y. 564; Fallon vs. Brooklyn
R. R., 56 N. Y. 652; Whitson vs. David, 81 N. Y.
645; Kennicutt vs. Parmalee, 109 N. Y. 650).

§ 32. Continued.

It has no power to review the action of the Ap-
pellate Division in striking out an award of costs in
an equity action since costs in such an action are
discretionary. (Husted vs. Van Ness, 158 N. Y.
104; Allen vs. Stevens, 161 N. Y. 122; McCulloch
vs. Dobson, 133 N. Y. 114; Hauxhurst vs. Ritch,
119 N. Y. 621; Van Gelder vs. Van Gelder, 84 N.
Y. 658; Herrington vs. Robertson, 71 N. Y. 280;
Provost vs. Provost, 70 N. Y. 141; Barker vs.
White, 3 Keyes, 495, 617; McGregor vs. Buel, 24
N. Y. 166.) But it may consider whether the dis-
cretion in that regard has been abused. (Roberts
vs. N. Y. El. R. R. Co., 155 N. Y. 31, 40.) It has
no power to review the action of the trial court in
awarding an allowance where there is evidence suffi-
cient to justify the award (Woodbridge vs. First
National Bank, 166 N. Y. 238; Shield vs. Wirtman,

50
THE COURT OF APPEALS.

126 N. Y. 650; Conaughty vs. Saratoga National
Bank, 92 N. Y. 401; German American Bank vs.
Morris Coal Co., 74 N. Y. 58; Krekeler vs. Ritter,
62 N. Y. 372; Southwick vs. Southwich, 49 N. Y.
514; Darling vs. Brewster, 55 N. Y. 667). But if
the power to grant the allowance is disputed, that
question may be reviewed (Hanover Fire Insurance
Co. vs. Germania Fire Insurance Co., 138 N. Y.
252). It has no power to review an order denying
an application for leave to intervene in a mandamus
proceeding (In re Bohnet vs. The Mayor, etc., 150
N. Y. 279).

§ 33. Continued. Rule in mandamus and certiorari
proceedings.

It has no power, where the court below had juris-
diction to grant a mandamus as matter of discretion,
to review the allowance of the writ (People ex rel.
Rodgers vs. Coler, 166 N. Y. 1; Matter of Tuttle
vs. National Bank, 170 N. Y.9). It has no power
to review an order denying an application for a writ
of mandamus unless it affirmatively appears in the
order denying the writ that the court did not re-
fuse the application in the exercise of discretion
(People ex rel. N. Y. & H. R. R. R. Co. vs. Board
of Taxes, 166 N. Y. 154; People ex rel. vs. Jerol-
oman, 139 N. Y. 14; People ex rel. Jacobus vs.
Van Wyck, 157 N. Y. 495; People ex rel. Steinson
vs. Board of Education, 158 N. Y. 125; People ex
rel. vs. Moss, 161 N. Y. 623; People ex rel. vs. Co-
ler, 168 N. Y. 6; In re Sage, 70 N. Y. 223). It

51
THE COURT OF APPEALS.

has no power to review an order denying an appli-
cation for a writ of prohibition (People ex rel.
Adams vs. Westbrook, 89 N. Y. 152).

§ 34. Continued.

It has no power to review an order quashing a
common law writ of certiorari unless it appears in
the order that the court refused the writ for want
of jurisdiction or for some other reason not in-
volving the exercise of discretion. (People ex rel.
O’Connor vs. Supervisors, 153 N. Y. 370, 3743
People ex rel. Forest Commission vs. Campbell, 152
N. Y. 51; People ex rel. Coler vs. Lord, 157 N. Y.
408; People ex rel. May vs. Maynard, 160 N. Y.
453; People ex rel. Waldman vs. B’d of Police
Commrs., 82 N. Y. 506; People ex rel. Haneman vs.
B’d of Tax Commrs., 85 N. Y. 655; Pelton vs. Ins.
Co., 77 N. Y. 605; People ex rel. Davis vs. Hill,
53 N. Y. 547; People ex rel. Vanderbilt vs. Stilwell,
19 N. Y. 531.) But a writ of certiorari to review
an assessment under laws of 1880, chapter 269, is a
matter of right, and an order quashing such writ is
reviewable in the Court of Appeals. (People ex rel.
Commercial Insurance Co. vs. Tax Commissioners
of New York, 144 N. Y. 483; Matter of Corwin,
135 N. Y. 245.)

Whether a writ of mandamus which is too broad
shall be quashed or amended is a matter confided to
the discretion of the Supreme Court with which the
Court of Appeals has no power to interfere (Peo-

52
THE COURT OF APPEALS.

ple ex rel. Hasbrouck vs. Supervisors, 135 N. Y.
522).

§ 35. Enumeration of discretionary decisions
continued.

Indeed, as a general principle, it may be said to
be in the discretion of the Supreme Court when it
finds error in part of a judgment requiring a re-
versal of such part, to reverse the whole judgment;
and that discretion will not, except under peculiar
circumstances, be interfered with upon appeal to
the Court of Appeals (Gray vs. Manhattan Ry.
Co., 128 N. Y. 499). But a different rule would
seem to govern where the part of the judgment
affected with error may be clearly severed from the
residue (Freel vs. County of Queens, 154 N. Y.
661). An order determining the right to the cus-
tody of a child in a habeas corpus proceeding in-
stituted by the mother against the father is dis-
cretionary, and not reviewable in the Court of
Appeals (People ex rel. Sternberger vs. Sternberg-
er, 153 N. Y. 684; Matter of Welch, 74 N. Y. 299).
Rulings made in the course of a trial which are not
governed by fixed principles of law or which do
not involve strictly legal error, and are not the
subject of exceptions, are for like reasons not re-
viewable in the Court of Appeals, but relief must
be had, if at all, in the Supreme Court. Thus a
ruling of a referee permitting plaintiff to reopen
his case after defendant had rested is held to be
discretionary (Reusens vs. Reusens, 133 N. Y.

53
THE COURT OF APPEALS.

298). The refusal to postpone a trial is discretion-
ary and not reviewable (Smith vs. Alker, 102 N. Y.
87). The refusal of the trial court to permit an
amendment of the pleadings at the trial is dis-
cretionary and not reviewable (Coffin vs. Grand
Rapids Hydraulic Co., 136 N. Y. 655; Barnes vs.
Brown ,130 N. Y. 372). Nor is the granting of an
amendment at the trial, if the amendment is within
the power of the court (Hodges vs. Tennessee In-
surance Co., 8 N. Y. 416; Davis vs. The Mayor,
14 N. Y. 506).

The denial of a request to withdraw a juror to
enable plaintiff to move at Special Term to amend
his complaint is discretionary (Freeman vs. Grant,
132 N. Y. 22).

Within the same category of discretionary deci-
sions are decisions on applications for relief on ac-
count of misconduct of counsel in asking questions
known to be incompetent, which suggest prejudicial
facts to the jury (Cosselmon vs. Dunfee, 172 N. Y.
507), or on account of prejudicial comments by a
trial judge falling short of legal errors. The mere
intimation of an opinion by the trial judge upon
the evidence or upon the merits of the case, and
his comments thereon, furnish no ground for a
reversal in the Court of Appeals so long as the
whole case is submitted to the jury upon a charge
which lays down no improper rule of law, but
the Supreme Court in the exercise of its discre-
tion, may set aside the verdict on such grounds,
since, unlike the Court of Appeals, it is not re-

54
THE COURT OF APPEALS.

stricted to questions of law properly excepted to
(Hurlburt vs. Hurlburt, 128 N. Y. 420; Hamilton
vs. Third Av. Ry. Co., 53 N. Y. 25, 27; Conners vs.
Walsh, 131 N. Y. 590; White vs. Calder, 35 N. Y.
183; Caldwell vs. N. J. Steamboat Co., 47 N. Y.
283).

§36. Continued.

The nature of the relief awarded is often dis-
cretionary. Whether specific performance shall be
granted or withheld in cases where the circum-
stances permit the conclusion that such relief would
be inequitable, is to be determined by the court be-
low in the exercise of its discretion. (Stokes vs.
Stokes, 155 N. Y. 581, 590; Heller vs. Cohen, 154
N. Y. 299, 306; McPherson vs. Schade, 149 N. Y.
16, 21; Gotthelf vs. Stranahan, 138 N. Y. 345,
351; Miles vs. Dover Furnace Iron Co., 125 N. Y.
294, 297; Trustees of Columbia College vs. Thach-
er, 87 N. Y. 311, 317; Margraf vs. Muir, 57 N. Y.
155; Peters vs. Delaplaine, 49 N. Y. 362; Winne
vs. Winne, 166 N. Y. 263, 272.) It is within the dis-
cretion of the trial court to determine whether an
injunction restraining the construction of an elec-
tric railway upon the surface of a street, the fee
of which is held by the abutting land owner, shall
be alternative, restraining the construction of the
railway until payment of damages, and denying an
injunction if such damages be paid, or whether such
injunction shall be made perpetual in the first in-
stance, leaving the railway company to its proceed-

38
THF COURT OF APPEALS.

ing to condemn, if it has any legal right to such pro-
ceedings. An order, therefore, of the Special Term
granting a perpetual injunction in such a case af-
firmed by the Appellate Division presents no ques-
tion of law reviewable by the Court of Appeals, es-
pecially if there be a dispute or doubt as to the legal
right of the company to acquire the title sought by
condemnation proceedings. (Reed vs. Schenectady
Railway Co., 170 N. Y. 298.) A judgment grant-
ing a divorce to plaintiff but awarding the custody
of the children to the defendant is within the dis-
cretion of the Supreme Court, and where the court
does not exceed its powers, an affirmance thereof
by the Appellate Division is not reviewable by the
Court of Appeals. (Osterhoudt vs. Osterhoudt,
168 N. Y. 358.) Whether a question of law aris-
ing upon an objection to a title should be passed
upon, or whether the court should relieve the pur-
chaser on the ground that the question is doubtful
without passing upon it, is to be determined by the
Supreme Court in the exercise of its discretion, and
with the exercise of that discretion, the Court of
Appeals will decline to interfere. (Matter of Baer,
147 N. Y. 348; Kelso v. Lorillard, 85 N. Y. 177.)
For the same reason, an order relieving a purchaser
where facts are shown sufficient to call upon the
court to exercise its discretion, is not reviewable.
(Crocker vs. Gollner, 135 N. Y. 662.) For the
same reason, where a suitor has an election between
a summary remedy by motion and a remedy by ac-
tion, a decision of the Supreme Court declining to
56
THE COURT OF APPEALS.

entertain the summary proceeding and remitting
the party to his action is commonly not reviewable.
Thus, where a motion is made to compel an attorney
to pay over money received by him for his client, an
order refusing to grant such relief which does not
show that it was made for want of jurisdiction, is
not reviewable by the Court of Appeals. (Schell
vs. The Mayor, 128 N. Y. 67.) An order refusing
to proceed summarily against the sheriff to compel
the payment of moneys, when there is a reasonable
doubt as to his duty, and leaving the parties to ac-
tion, is not reviewable. (Mills vs. Davis, 53 N. Y.
349; see, also, Concklin vs. Taylor, 68 N. Y. 221;
Matter of Hatch, 74 N. Y. 611.) For the same
reason, an order denying a motion of a judgment
creditor to set aside a prior judgment for fraud and
remitting him to his action, is discretionary and not
reviewable. (Beards vs. Wheeler, 76 N. Y. 213.)
It is discretionary with the Supreme Court, whether
to pass on the sufficiency of a pleading on motion
or to leave a party to a demurrer, and there is no
power in the Court of Appeals to review the exer-
cise of that discretion. (Elwood vs. Roof, 82 N.
Y. 428; Wilkin vs. Raplee, 52 N. Y. 248.) Where
an action is brought to set off one judgment against
another, the right to set off is within the equitable
discretion of the court below, and its refusal to grant
relief will not be reviewed. (DeCamp vs. Thomp-

son, 159 N. Y. 444, 449.)

5f
THE COURT OF APPEALS.

§ 37. Continued. The distinction between discretion-
ary orders and those not discretionary still im-
portant under the present constitution even
where the orders are intermediate, and hence
not reviewable as of right.

In many of the cases where the Court of Appeals
has declined to entertain jurisdiction because of the
discretionary character of the relief, the orders were
intermediate orders, and hence, since the adoption
of the present Constitution, apart from their dis-
cretionary character, would no longer be review-
able of right. Much of the learning on the sub-
ject of discretionary applications has thus become
obsolete. It is not, however, entirely obsolete; for
intermediate orders may still be reviewed when
questions are certified by the Appellate Division, but
no certificate can clothe the Court of Appeals with
the power to pass upon any question involving the
exercise of discretion. (Matter of Westerfield, 163
N. Y. 209.) That would be to violate the consti-
tutional restriction of its jurisdiction to questions
of law. It may still be important, therefore, when
questions are certified by the court below on appeals
from intermediate orders, to recall the earlier de-
cisions which have defined their discretionary char-
acter. An exhaustive catalogue of the decisions up-
on this subject would be difficult to prepare, but the
following orders, most of which are intermediate,
and therefore no longer reviewable as of right, have
been held to be discretionary.

58
THE COURT OF APPEALS.

§ 38. Enumeration of discretionary orders continued.

An order granting or withholding a discovery or
examination before trial. (Finlay vs. Chapman,
119 N. Y. 404; Clyde vs. Rogers, 87 N. Y. 625;
Stilwell vs. Priest, 85 N. Y. 649; Jenkins vs. Put-
nam, 106 N. Y. 272, 276; Glenney vs. Stedwell, 64
N. Y. 120, 128; Rogers vs. Durant, 56 N. Y. 669;
Heishon vs. Knickerbocker Life Insurance Co., 77
N. Y. 278.) An order setting aside the verdict of
a jury in an equity action where the trial of the
issues by a jury is within the discretion of the court.
(Randall vs. Randall, 114 N. Y. 500; Lansing vs.
Russell, 2 N. Y. 563.) An order determining that
specified issues in such an action be tried before a
jury. (Brinkley vs. Brinkley, 56 N. Y. 192; Col-
man vs. Dixon, 50 N. Y. 572; Candee vs. Lord, 2
N. Y. 269.) An order granting or refusing a stay
of proceedings. (Granger vs. Craig, 85 N. Y. 619;
Enos vs. Thomas, 5 Howard’s Practice, 359; People
vs. Northern R. R. Co., 42 N. Y. 217; Matter of
Halsey, 93 N. Y. 48; Matter of Brenner, 170 N. Y.
185, 194.) An order awarding restitution on mo-
tion instead of remitting the parties to an action.
(Merriam vs. Wood & Parker Lithographing Co.,
155 N. Y. 136; Market National Bank of New York
vs. Pacific National Bank, 102 N. Y. 464; Hollo-
way vs. Stephens, 58 N. Y. 670.) An order of the
Surrogate denying an application of one having no
direct or contingent interest in a fund to intervene
in a proceeding to compel an executor to pay over a

of
THE COURT OF APPEALS.

legacy. (Matter of Halsey, 93 N. Y. 48.) An
order denying a motion for the resettlement of a
prior order, (Matter of Halsey, 93 N. Y. 48) or
denying a motion for a reargument. (Cooper vs.
Beecher, 109 N. Y. 609; Fleischman vs. Stern, 90
N. Y. 110.) An order denying a motion to dismiss
an appeal, unless recited as made for want of power.
(McKenna vs. Bolger, 94 N. Y. 641; Cushman vs.
Brundrett, 50 N. Y. 296; Wallace vs. Castle, 68 N.
Y. 370.) An order granting leave to the Attorney
General to bring an action to vacate the charter of
a corporation. (People vs. Buffalo Stone & Ce-
ment Co., 131 N. Y. 140; Attorney General vs. Con-
tinental Life Insurance Co., 68 N. Y. 343.) An
order granting or denying a motion to remove a
referee, (Baird vs. The Mayor, 74 N. Y. 382; Gray
vs. Fisk, 53 N. Y. 630; Livermore vs. Bainbridge,
56 N. Y. 72; Leonard vs. Mulry, 93 N. Y. 392;
Matter of Simpson, 158 N. Y. 720), or to set aside
his report on the ground that his mind had be-
come impaired. (McCulloch vs. Dobson, 133 N.
Y. 114.) An order denying a motion to re-
lieve a purchaser at a judicial sale upon the
ground of mistake as to the dimensions of the
property where the facts justify an inference
of negligence on his part. (Dennerlein vs. -Den-
nerlein, 111 N. Y. 518; King vs. Platt, 3 Abb.
Pr., N. S., 174; Buffalo Savings Bank vs. Newton,
25 N. Y. 160; Dows vs. Congdon, 28 N. Y. 122.)
An order granting a motion to set aside a judicial
sale upon allegations of fraud in the conduct there-
60
THE COURT OF APPEALS.

of, or of mistake, surprise, inadequacy of price or
like grounds. (Fisher vs. Hersey, 78 N. Y. 387;
Commonwealth Insurance Co., vs. Bowman, 90 N.
Y. 654; Winter vs. Eckart, 93 N. Y. 48; Crane vs.
Stiger, 58 N. Y. 625; Hale vs. Clauson, 60 N. Y.
339; Goodell vs. Harrington, 76 N. Y. 547; Wake-
man vs. Price, 3 N. Y. 334; Hazleton vs. Wakeman,
3 How. Pr., 357.) But an order denying such a
motion where the conceded facts establish a fraud
vitiating the sale, is held not to be discretionary.
(Howell vs. Mills, 53 N. Y. 332.) An order deny-
ing a motion to set aside a verdict for the miscon-
duct of jurors (Williams vs. Montgomery, 60 N.
Y. 648; Gale vs. N. Y.C.& H.R. R. Co., 76 N. Y.
594; Lawrence vs. Ely, 38 N. Y. 42; Folger vs.
Fitzhugh, 41 N. Y. 228), or to set aside a verdict,
report or judgment for other matters in pais, dehors
the record. (Hitchcock vs. Peaslee, 145 N. Y. 547;
Williams vs. Montgomery, 60 N. Y. 648; Randall
vs. Packard, 142 N. Y. 47; Hatch vs. Central Nat-
ional Bank, 78 N. Y. 487; Whitney vs. Townsend,
67 N. Y. 40.) But where a motion for a new trial
was made on the ground of a communication be-
tween the judge and the jury without the knowl-
edge or consent of the moving party, it was held
that even though there was no evidence that the
communication tended to the party’s injury, the
right to a new trial was not discretionary but abso-
lute. (Watertown Bank & Loan Co. vs. Mix, 51
N. Y. 558.)

61
THE COURT OF APPEALS.
§ 39. Continued.

Discretionary also are the following:

An order opening or refusing to open a default
(Ferris vs. Ferris, 56 N. Y. 614; Miller vs. Tyler,
58 N. Y. 477; Wade vs. DeLeyer, 63 N. Y. 318;
Dinsmore vs. Adams, 66 N. Y. 618; Alling vs.
Fahy, 70 N. Y. 571; Lawrence vs. Farley, 73 N.
Y. 187; Depew vs. Depew, 56 N. Y. 657; Peck vs.
N. Y.& N. J. Ry. Co., 85 N. Y. 246; Fort vs. Bard,
1 N. Y. 43), unless the moving party was never
served with process and so is entitled to open the
judgment as matter of right. (Kamp vs. Kamp,
59 N. Y. 212; Whiter vs. Coulter, 59 N. Y. 629.)
An order allowing or refusing an amendment of a
pleading (Sprague vs. Cochran, 144 N. Y. 104;
King vs. Barnes, 107 N. Y. 645; Deyo vs. Moss,
144 N. Y. 216, 219; Rice vs. Grange, 131 N. Y.
149; Quinby vs. Claflin, 77 N. Y. 270; Gambling vs.
Haight, 58 N. Y. 623; Getty vs. Spalding, 58 N. Y.
636; Lapham vs. Rice, 55 N. Y. 472), or allowing
or refusing leave to serve a supplemental pleading.
(Farmers’ Loan & Trust Co., vs. Bankers and Mer-
chants Telegraph Co., 109 N. Y. 342; Fleischman
vs. Bennett, 79 N. Y. 579; Spears vs. The Mayor.
72 N. Y. 442; Holyoke vs. Adams, 59 N. Y. 233;
Medbury vs. Swan, 46 N. Y. 200.) But an order
denying an amendment for want of power is re
viewable. (Reed vs. The Mayor, 97 N. Y. 620.)
So also, an order denying a motion to compel plain-
tiff to accept service of an amended pleading which

62
THE COURT OF APPEALS.

defendant claimed the right to serve as of course,
involves a question of power and is reviewable.
(Cashman vs. Reynolds, 123 N. Y. 138.) An or-
der granting a motion to amend a judgment is
discretionary (Bartlett vs. McNeill, 60 N. Y. 53)
or refusing to amend it (Grant vs. Griswold, 82 N.
Y. 569) or an order setting aside a judgment as
matter of favor (Sherman vs. Felt, 2 N. Y. 186)
or an order of a court correcting any mistake in
its own records. (Baker vs. Home Life Insurance
Co., 63 N. Y. 630; Mojarietta vs. Saenz, 80 N. Y.
553; Buckingham vs. Dickinson, 54 N. Y. 682.)

§ 40. Continued.

Discretionary also are the following:

An order granting leave to issue execution where
leave is necessary (Sherman vs. Straus, 52 N. Y.
404; Underwood vs. Green, 56 N. Y. 247), or an
order granting leave to a receiver to sue. (Matter
of Reeve, 34 N. Y. 359.) An order denying a
motion to set aside an execution issued without
leave after the lapse of five years. (Bank of Gene-
see vs. Spencer, 18 N. Y. 150; Aultman Taylor Co.
vs. Syme, 163 N. Y. 54, 65.) An order determin-
ing the character of an applicant for admission to
the bar. (Matter of Begs, 67 N. Y. 120.) An or-
der determining who shall be appointed general
guardian of an infant. (Matter of Vandewater, 115
N. Y. 669.) An order refusing a bill of particulars,
unless the order shows that it was refused for want
of power. (Tilton vs. Beecher, 59 N. Y. 176; Peo-

63
THE COURT OF APPEALS.

ple vs. Tweed, 63 N. Y. 194.) An order granting’
a bill of particulars. (Cohn vs. Baldwin, 141 N.
Y. 563; Witkowski vs. Paramore, 93 N. Y. 467;
Dwight vs. Germania Life Insurance Co., 84 N. Y.
493.) An order made in the exercise of a court’s
rightful jurisdiction appointing a receiver. (Woer-
ishoffer vs. North River Construction Co., 99 N. Y.
398; Ostrander vs. Webber, 114 N. Y. 95; Parsons
vs. Parsons, 137 N. Y. 605.) An order granting
or denying a motion to set aside an inquisition after
an assessment of plaintiff’s damages, whether taken
after the cause of action has been admitted by the
defendant’s failure to answer, or after the affirm-
ance of an order granting a new trial and the entry
of judgment absolute thereon. (Bassett vs. French,
155 N. Y. 46; Bossuett vs. R. W. & O. R. R. Co.,
131 N. Y. 37; Greenleaf vs. Brooklyn, R. R. Co.,
1o2 N. Y. 96.) An order of the Surrogate va-
cating a stay and denying an application by an ex-
ecutor for relief from a stipulation of renunciation.
(Matter of Baldwin, 158 N. Y. 713.) An order
refusing to allow an appeal where an appeal does
not lie of right. (People ex rel. Grissler vs. Fow-
ler, 55 N. Y. 675.) An order determining the
amount of bail, and whether both an attachment
and an arrest shall be had in the same action (Peo-
ple vs. Tweed, 63 N. Y. 202). or determining an
application for the exoneration of bail after the ex-
piration of the time limited by law. (Mills vs. Hil-
dreth, 81 N. Y. 91, 93; Douglass vs. Haberstro,
82 N. Y. 572.) An order refusing a reference
64
THE COURT OF APPEALS.

where it is claimed that a long account is involved.
(Martin vs. Windsor Hotel Co., 70 N. Y. 101;
Harrington vs. Bruce, 84 N. Y. 103.) But an or-
der granting such a reference is reviewable to the
extent that the Court of Appeals may ascertain
whether there was any power to grant it. (Kain vs.
Delano, 11 Abbott’s Practice, N. S. 29; Steck vs.
Colorado Fuel & Iron Co., 142 N. Y. 236; and cases
cited.) If power existed, the propriety of its exer-
cise may not be considered. (Cassidy vs. McFar-
land, 139 N. Y. 201.)

§ 41. Continued.

Discretionary also are the following:

An order determining the amount of an award of
alimony and counsel fees in an action for divorce,
unless so grossly excessive as to show abuse of
power. (Llamosas vs. Llamosas, 62 N. Y. 618;
Kennedy vs. Kennedy, 73 N. Y. 369.) An order
denying an application to punish a party for con-
tempt. (Sutton vs. Davis, 64 N. Y. 633; Bowery
Savings Bank vs. Richard, 63 N. Y. 631; Coch-
rane vs. Ingersoll, 73 N. Y. 613.) An order of in-
terpleader where power to grant the order exists.
(Tanton vs. Groh, 8 Abb. Pr., N. S., 385.) Where
different actions have been brought by creditors
in behalf of themselves and other creditors against
an assignee for the benefit of creditors, for an ac-
counting and closing of the trust, the court has
power in its discretion to make an order to compel
all the creditors to come in and prove their claims

65
THE COURT OF APPEALS.

in the suit first brought and to stay all proceedings
in the other actions. (Travis vs. Myers, 67 N. Y.
542.) The refusal of leave to plead over after de-
murrer is discretionary (Simson vs. Satterlee, 64
N. Y. 657), but where on appeal from an order sus-
taining a demurrer the Court of Appeals reverses
the order, it may give defendant leave to plead over
and it should do this where it appears that the de-
murrer was interposed in good faith and the case
is one in which the court below should have given
such leave. (Fulton Fire Insurance Co. vs. Bald-
win, 37 N. Y. 648.)

§ 42. Continued.

It is discretionary with the Supreme Court to re-
fuse to permit the discontinuance of an action or
proceeding where there are circumstances which
would render a discontinuance inequitable, or where
the interests of the public are involved, and if such
circumstances are shown, its discretion may not be
reviewed by the Court of Appeals. (Winans vs.
Winans, 124 N. Y. 140; Moore vs. Moore, 138 N.
Y. 679; Carleton vs. Darcy, 75 N. Y. 375; Matter
of Waverly Waterworks Co., 85 N. Y. 478.) The
discretion is not arbitrary, and if the facts furnish
no basis for a denial of the application, the re-
fusal of leave to discontinue presents a question
of law. (Matter of Butler, 101 N. Y. 307; Winans
vs. Winans, supra.)

66
THE COURT OF APPEALS.
§ 43. Continued.

In all cases where a motion is addressed to the
favor of the court, it may impose terms as a condi-
tion of granting the motion. If the moving party
can not or will not comply with the condition, the
result is simply a denial of the application, and so
the imposition of the terms is not reviewable in the
Court of Appeals. (Matter of Waverly Water-
works Co., 85 N. Y. 478; Brownell vs. Ruckman,
85 N. Y. 648.)

§ 44. Continued.

An order affirming or reversing an order granting
or denying a temporary injunction could not, even
before the court was prohibited from the review as
of right of interlocutory orders, be reviewed in the
Court of Appeals unless it appeared from the rec-
ord that the element of dscretion was excluded or
that the injunction was sustained when in fact there
was no power to grant it or was set aside expressly
on that account. (Schneider vs. City of Rochester,
155 N. Y. 619; Castoriano vs. Dupe, 145 N. Y.
250; White vs. Inebriates Home, 141 N. Y. 123;
Birge vs. Berlin Iron Bridge Co., 133 N. Y. 477;
Hudson River Telephone Co. vs. Watervliet &c. R.
R. Co., 121 N. Y. 397; Anderson vs. Anderson, 112
N. Y. 104; Strasser vs. Moneelis, 108 N. Y. 611:
Selchow vs. Baker, 93 N. Y. 59; Williams vs. West-
ern Union Telegraph Co., 93 N. Y. 640; Patten vs.
N. Y. El. Ry. Co., 67 N. Y. 484; Calkin vs. Man-
hattan Oil Co. 65 N. Y. 557; Pfohl vs. Sampson,

67
THE COURT OF APPEALS.

59 N. Y. 174; People vs. Schoonmaker, 50 N. Y.
499; Vandewater vs. Kelsey, 1 N. Y. 533; Has-
brook vs. Kingston Board of Health, 3 Keyes,
480. )

§ 45. Continued.

So, an order vacating an attachment at the in-
stance of the defendant is deemed to be discretion-
ary, and hence, even before the restrictions of the
present Constitution, was not reviewable in the
Court of Appeals (Allen vs. Meyer, 73 N. Y. 1:
Catlin vs. Ricketts, 91 N. Y. 668; National Shoe
& Leather Bank vs. Mechanics’ National Bank, 89
N. Y. 440; Bate vs. McDowell, 97 N. Y. 646;
Thorington vs. Merick, ror N. Y. 5; Sartwell vs.
Field, 68 N. Y. 341; Claflin vs. Baere, 80 N. Y.
646) ; but the rule was otherwise where the order
negatived the exercise of discretion (Tolman vs.
Syracuse R. R. Co., 92 N. Y. 353), or where the
motion was made on a ground involving a question
of jurisdiction only, as e. g., the failure to serve a
summons. (Blossom vs. Estes, 84 N. Y. 614.)
It was otherwise also where the warrant was va-
cated on the application, not of the defendant, but
of a junior creditor, for on such an application the
Court may vacate for jurisdictional defects only,
and hence discretion is excluded. (Haebler vs.
Bernhath, 115 N. Y. 459; Van Camp vs. Searle,
147 N. Y. 150; Ladenburg vs. Commercial Bank
of Newfoundland, 148 N. Y. 200.) For the same
reason, if the order sustained the attachment in-

68
THE COURT OF APPEALS.

stead of vacating it, the defeated party, whether a
defendant or a junior creditor, had a right to review
in the Court of Appeals the question whether there
was any power to sustain the warrant (Murphy vs.
Jack, 142 N. Y. 215; Steuben County Bank vs. Al-
berger, 78 N. Y. 252; Tracy vs. First National
Bank of Selma, 37 N. Y. 523), but not to review
the propriety of the exercise of discretion. (Wen-
zell vs. Morrisey, 115 N. Y. 665; Buell vs. Van
Camp, 119 N. Y. 160; Ellis vs. Rice, 77 N. Y. 610;
Whitaker vs. Imperial Skirt Mfg. Co., 78 N. Y.’
621.) For the same reason, an order granting a
motion to vacate an order of arrest, where upon
any view of the facts such decision can be upheld,
is discretionary. (Townsend vs. Nebenzehl, 81 N.
Y. 644; Clarke vs. Lourie, 82 N. Y. 580.) Dis-
cretionary too, is an order denying an order to va-
cate an order of arrest where the affidavits supply
some evidence of the facts justifying such an order
(Wright vs. Brown, 67 N. Y. 1; Douglass vs. Hab-
erstro, 82 N. Y. 572, 574; Liddell vs. Paton, 67 N.
Y. 393), but not where there is an entire absence
of evidence. (Morris vs. Talcott, 96 N. Y. 100.)

§ 46. Form of order necessary to give jurisdiction to
Court of Appeals where decision in the Court
below may have been based on discretionary
grounds. Presumption as to exercise of dis-
cretion.

There have been many decisions as to the recitals
necessary in orders where the application is one that

69
THE COURT OF APPEALS.

may have been decided upon discretionary grounds.
Where a judgment of the court without a jury, or
of a referee, is reversed, the statute, as we have seen,
requires the presumption that it was reversed upon
the law only, unless by the record it appears to have
been reversed upon the facts (Code Civil Procedure,
sec. 1338); but in the case of appeals from orders
as distinguished from judgments, the rule is differ-
ent. If an order may have been reversed upon dis-
cretionary grounds and the order of reversal is
silent as to the real grounds of decision, the Court
of Appeals will presume that the order was made
in the exercise of the discretion of the court below,
and will therefore decline to entertain the appeal.
(Matter of Attorney General, 155 N. Y. 441;
Schneider vs. City of Rochester, 155 N. Y. 619;
Cohn vs. Baldwin, 141 N. Y. 563; Clarke vs. Lou-
rie, 82 N. Y. 580; Noyes vs. Children’s Aid Society,
70 N. Y. 481; Cushman vs. Bundrett, 50 N. Y.
296.) There is an exception to this rule, however,
where an order is not appealable as of right and
the Appellate Division certifies a question of law
for review. Under such circumstances, it will be
presumed that the determination was made upon the
merits, unless it expressly appears by the record
that it was made in the exercise of discretion. (Mat-
ter of Davies, 168 N. Y. 89.) In all other cases,
to confer jurisdiction on the Court of Appeals, it
must appear by express recital in the order that it
was made upon jurisdictional grounds or upon other
grounds not involving the exercise of discretion.

7O
THE COURT OF APPEALS.

If, for illustration, it appears by the recitals of the
order that it was based upon the ground of want
of power to grant the application, without consid-
ering the questions of discretion, a question of law
is presented which it is the duty of the Court of Ap-
peals to review, even if the courts below might have
denied the application in the exercise of discretion.
(Matter of Thurber, 162 N. Y, 244; Tolman vs.
S. B.& N. Y. R. R. Co. 92 N. Y. 354.) But in
such a case if the Court of Appeals reaches a differ-
ent conclusion on the question of power, it will re-
mit the matter to the Appellate Division for further
action. (Matter of Thurber, 162 N. Y. 244, 252;
Pringle vs. L. I. R. R. Co. 157 N. Y. 100, 105;
Reed vs. The Mayor, 97 N. Y. 620; Hewlett vs.
Wood, 67 N. Y. 394; Tilton vs. Beecher, 59 N. Y.
176, 180; Matter of De Camp, 151 N. Y. 551, 564;
Taylor vs. Smith, 164 N. Y. 399; Fox vs. Matthies-
sen, 155 N. Y. 177.)

§ 47. Continued.

The same presumption that discretion was exer-
cised, arises where the order of the Special Term
has been affirmed at the Appellate Division as where
it has been reversed. If the order may have been
granted or withheld on discretionary grounds, it will
be presumed that they were the basis of the decision
unless the contrary appears. But if the order of the
Special Term denying a motion involving a question
of discretion, states that it is denied solely upon the
ground of want of power, and the Appellate Divi-

72
THE COURT OF APPEALS.

sion affirms the order without qualification, this is
an affirmance of it in all its parts including the
ground upon which, by its terms, it was granted,
and the order, therefore, is reviewable by the Court
of Appeals. (Hewlett vs. Wood, 67 N. Y. 394;
Equitable Life Assurance Society vs. Stevens, 63
N. Y. 341; Direct United States Cable Co. vs. Do-
minion Telegraph Co., 84 N. Y. 153, 156.) In
such cases, if it is determined that the court below
erred in its decision as to power, the proceedings
will be remitted to the court below for the exercise
of its discretion. (Hewlett vs. Wood, supra.)

§ 48. Continued.

The rule that an order whch may have been made
upon discretionary grounds will be presumed to
have been so made unless the contrary appears, has
been applied, not merely to interlocutory orders,
but also to final orders in special proceedings.
(People ex rel. N. Y: C. & H. R. R. R. Co, vs.
Board of Taxes, 166 N. Y. 154; People ex rel.
Durant L. I. Co. vs. Jeroloman, 139 N. Y. 14; Peo-
ple ex rel. Jacobus vs. Van Wyck, 157 N. Y. 495;
People ex rel. Steinson vs. Board of Education, 158
N. Y. 125; People ex rel. vs. Coler, 168 N. Y. 6;
People ex rel. May vs. Maynard, 160 N. Y. 435;
People ex rel. O’Connor vs. Supervisors, 153 N. Y.
370, 374; People ex rel. Sternberger vs. Stern-
berger, 153 N. Y. 684.) There is no doubt that
this application of the rule is proper where the final
order reviewed by the Court of Appeals is an order

72
THE COURT OF APPEALS.

of affirmance; but where the final order is one of re-
versal, it would seem that, under the provisions
of sec. 1338 of the Code, it ought to be presumed
to have been reversed upon grounds not involving
the exercise of discretion, unless the contrary ap-
pears. In practice, however, the court has made no
distinction between final orders of affirmance and
final orders of reversal (People ex rel. Jacobus vs.
Van Wyck, supra; People ex rel. N. Y. C. & H. R.
R. R. Co. vs. Board of Taxes, supra; People ex rel.
Durant L. I. Co., vs. Jeroloman, 139 N. Y. 14; and
cases cited, ante, p. 31); though there are inti-
mations in some cases to the contrary. (People ex
rel. Feeny vs. Board of Supervisors, 156 N. Y., 36,
43, 44; Wetmore vs. Wetmore, 162 N. Y. 503.)
In other words, if the facts are undisputed, but
there is still room for the exercise of discretion, the
court will presume that a final order was reversed
upon discretionary grounds unless the contrary ap-
pears.

§ 49. Continued. Rule applicable to final orders in
special proceedings.

On the other hand, it has been held in a number
of cases that where the facts are disputed, and the
reversal may thus have been based not merely upon
the exercise of discretion as applied to undisputed
facts, but upon a difference of view between the
Special Term and the Appellate Division as to the
facts themselves, the reversal will be presumed, in
the case of an appeal from a final order, to have been

73
THE COURT OF APPEALS.

on the law only, unless the contrary appears in the
record, and the same rule will be applied as on an
appeal from judgment. (People ex rel. Manhattan
Railway Company vs. Barker, 165 N. Y. 312; Mat-
ter of Keefe, 164 N. Y. 352; Wetmore vs. Wet-
more, 162 N. Y. 503; Matter of Chapman, 162 N.
Y. 456; Matter of Westerfield, 163 N. Y. 209; Vil-
lage of Champlain vs. McCrea, 165 N. Y. 264,
273.)

In People ex rel. Manhattan Railway Company
vs. Barker (supra), the Court said:

“This is a special proceeding involving a trial
of an issue of fact, the commissioners claiming that
the company has taxable assets of great value, and
the relator that it has none. Section 1361 of the
Code of Civil Procedure, in making provision for
a review of special proceedings, provides that * the
proceedings upon an appeal, taken as prescribed in
this title, are governed by the provisions of this act,
and of the general rules of practice, relating to an
appeal in an action, except as otherwise specially
prescribed by law.’ Section 1338 provides for a re-
view in the Court of Appeals of judgments entered
in actions, and that upon an appeal to that court
‘from a judgment, reversing a judgment entered
upon the report of a referee, or a determination
in the trial court, or from an order granting a new
trial, upon such a reversal, it must be presumed that
the judgment was not reversed, or the new trial
granted, upon a question of fact, unless the contrary
clearly appears in the record body of the judg-

74
THE COURT OF APPEALS.

ment or order appealed from.’ Under these sections
we are required to assume that the order of the
Special Term was not reversed upon the facts, but
that the reversal was upon some error of law.
(Matter of Chapman, 162 N. Y. 456; Wetmore
vs. Wetmore, 162 N. Y. 503; People ex rel. Man-
hattan Ry. Co. vs Barker, 152 N. Y. 417; Matter
of Keefe, 164 N. Y. 352.)”

§ 50. Continued.

It does not seem possible to reconcile these two
lines of decision. If a reversal of a final order when
the facts are controverted will be presumed to be on
the law only, it would seem that a reversal of a final
order when the facts are not controverted, but there
is room for the exercise of discretion, should also be
presumed to be on the law only, i. e., on non-dis-
cretionary grounds. Yet the court has recognized
the presumption in the first class of cases, and has
generally refused to recognize it in the second,
though there are some few instances which are
seemingly to the contrary. (People ex rel. Feeney
vs. Board of Supervisors, supra; Wetmore vs. Wet-
more, supra.)

§51. Review by Court of Appeals of judgments of
death. Necessity for exception on such ap-
peals and on appeals in other criminal causes,

The limitation of the court’s jurisdiction to ques-
tions of law is removed where the appeal is from a
judgment of death. In such cases, the court reviews

75
THE COURT OF APPEALS.

the facts; and if in its opinion justice requires a new
trial, but not otherwise, it will reverse the judgment,
though no exception was taken to the erroneous
rulings. (People vs. Constantino, 153 N. Y. 24;
People vs. Carbone, 156 N. Y. 413; People vs. Mc-
Donald, 159 N. Y. 509; People vs. Hoch, 150 N.
Y. 291; People vs. Hall, 169 N. Y. 184; People
vs. Kennedy, 164 N. Y. 449; People vs. Corey, 157
N. Y. 332; People vs. Rice, 159 N. Y. 400; Code of
Criminal Procedure, sec. 528.) The power to re-
verse a judgment of death, though no exception
was taken, extends only to cases where the court
is of the opinion that justice requires a new trial,
and an exception is always necessary to raise a
purely technical question of law, where substantial
justice has not been defeated by the erroneous rul-
ing. (People vs. McDonald, 159 N. Y. 309; Peo-
ple vs. Kennedy, 164 N. Y. 449; People vs. Lyons,
110 N. Y. 618.) Though the power should be
cautiously exercised, it should be enforced when-
ever the court is satisfied from the record that a
new trial will promote the interests of justice.
(People vs. Corey, 157 N. Y. 332; People vs. Car-
bone, 156 N. Y. 413). But the court will not re-
verse on the facts even where the judgment is of
death, except in clear cases. If there is a fair con-
flict in the evidence, or if different inferences may
be drawn from it, the determination of the jury
will not be interfered with unless it is clearly against

the weight of evidence or appears to have been in-
76
THE COURT OF APPEALS.

fluenced by passion, prejudice, mistake or corrup~
tion. (People vs. Taylor, 138 N. Y. 398; People
vs. Cignarale, 110 N. Y. 23; People vs. Hoch, 150
N. Y. 291; People vs. Conroy, 153 N. Y. 174;
People vs. Sutherland, 154 N. Y. 345; People vs.
Decker, 157 N. Y. 186, 195; People vs. Place, 157
N. Y. 584; People vs. Braun, 159 N. Y. 558;
People vs. Kennedy, 159 N. Y. 346; People vs.
Schmidt, 168 N. Y. 568.) As the court’s power
to reverse a judgment because it is against the
weight of evidence is confined to judgments of death
(People vs. Ledwon, 153 N. Y. 10), soa like re-
striction limits its power to reverse for erroneous
rulings of law not challenged by exceptions. Even
in criminal cases, unless the judgment be one of
death, the Court of Appeals has no power in the
absence of appropriate exceptions to reverse a judg-
ment of conviction for an erroneous ruling of law.
(People vs. Sherlock, 166 N. Y. 180, 183; People
vs. Grossman, 168 N. Y. 47.) That power, in all
criminal cases where the judgment is not one of
death, is confined to the Supreme Court.

§ 52. Necessity for exceptions in civil causes.

As in criminal causes, where the judgment is not
one of death, errors of law are not open to review
in the Court of Appeals unless challenged by ap-
propriate exceptions, so, a fortiori, the same propo-
sition is true in civil causes. ‘In a civil action we
can only reverse upon exceptions, and are com-
pelled to disregard all errors committed by the trial

77
THE COURT OF APPEALS.

court unless they were pointed out by an objection
and saved by an exception, no matter how serious
those errors may be.” (Hecla Powder Co. vs.
Sigua Iron Co., 157 N. Y. 437, 441; Wangner vs.
Grimm, 169 N. Y. 421; Wicks vs. Thompson, 129
N. Y. 634; Serviss vs. McDonald, 107 N. Y. 260,
265; Duryea vs. Vosburgh, 121 N. Y. 57; Schwin-
ger vs. Raymond, 105 N. Y. 648; Ingersoll vs.
Bostwick, 22 N. Y. 425). It is therefore held that
the failure to move for the direction of a verdict
and to except to the court’s denial of the motion, is
a consent that the issues be submitted to the jury,
and the Court of Appeals is precluded, in the ab-
sence of an exception, from considering whether
there is any evidence on which a verdict could be
founded. Nor is it enough that the defendant
moved for a nonsuit at the close of the plaintiff’s
case, if he thereafter proceeded with his own case,
and failed at the close thereof to renew his motion
(Hopkins vs. Clark, 158 N. Y. 299; Pollock vs.
Iron Works, 157 N. Y. 699; Littlejohn vs. Shaw,
159 N. Y. 188, 191; Wangner vs. Grimm, 169 N.
Y. 421, 427; Sigua Iron Co. vs. Brown, 171 N. Y.
488, 506). This limitation upon the court’s juris-
diction cannot be evaded by stipulation of the par-
ties. The court will decline to give effect to a stip-
ulation consenting to the review on appeal of rul-
ings made by the trial court, if no exceptions thereto
appear in the case. (Briggs vs. Waldron, 83 N.
Y. 582). And so in an action tried before a referee,
or before the court without a jury, where the case is
78
THE COURT OF APPEALS.

not one of a unanimous affirmance, and hence the
question of law is open to review as to whether
a finding of fact has any evidence to support it,
the right to such review is defeated unless the find-
ing challenged as without evidence has been duly ex-
cepted to. (Turner vs. Weston, 133 N. Y. 650;
Donovan vs. Clark, 138 N. Y. 631; Patterson vs.
Robinson, 116 N. Y. 193; Gidley vs. Gidley, 65 N.
Y. 169; Hunt vs. Chapman, 62 N. Y. 333; Bitter
vs. Rathman, 61 N. Y. 512; Howell vs. Mills, 53 N.
Y. 226; Israel vs. Man. Ry. Co., 158 N. Y. 624;
Drake vs. N. Y. Iron Mine, 156 N. Y. 90.) The
exception, moreover, must be specific. It must
clearly indicate the finding of fact or conclusion of
law which it is desired to challenge. A general ex-
ception to all the findings or conclusions is unavail-
ing (Drake vs. N. Y. Iron Mine, 156 N. Y. go,
92; Thompson vs. Hazard, 120 N. Y. 634; Ward
vs. Craig, 87 N. Y. 550; Wheeler vs. Billings, 38
N. Y. 263; Newell vs. Doty, 33 N. Y. 83).?

§ 53. Continued.

There is one instance, however, in which an excep-
tion is unnecessary to enable the Court of Ap-
peals to review an erroneous ruling in a civil action.
It may review without an exception the determina-

1 There is the same need for a specific exception where it
is sought to review an error in the court’s charge to a jury
(Smedis vs. B. & R. B. R. R. Co., 88 N. Y. 14; Newell vs. Bart-
lett, 114 N. Y. 309; Read vs. Nichols, 118 N. Y. 224; Huerz-
eller vs. C. C. T. R. R. Co., 139 N. Y. 490).

79
THE COURT OF APPEALS.

tion of a question of law arising upon a verdict
where judgment has been rendered by the Appellate
Division upon a verdict subject to the opinion of
the Court (Code Civ. Pr. sec. 1339; Duryea vs.
Vosburgh, 121 N. Y. 57, 62). The return must
then contain a statement of the facts, of the ques-
tions of law arising thereupon, and of the deter-
mination of those questions by the Appellate Divi-
sion (Code Civ. Pr., sec. 1339), and if there is no
such statement the appeal will be dismissed (Cow-
enhoven vs. Ball, 118 N. Y. 231; Reinmiller vs.
Skidmore, 59 N. Y. 661; Essex Co. Bk. vs. Rus-
sell, 29 N. Y. 673). Upon such an appeal excep-
tions taken in the course of the trial cannot be
reviewed. (Cowenhoven vs. Ball, 118 N. Y. 231;
Durant vs. Abendroth, 69 N. Y. 148.) It is for
this reason that when exceptions have been taken,
it is erroneous to direct a verdict subject to the
opinion of the Appellate Division (Byrnes vs. City
of Cohoes, 67 N. Y. 205), though the error may be
waived by acquiescence. (Cowenhoven vs. Ball,
supra. )

Another instance in which an exception is un-
necessary is supplied by the decision in Wheeler
vs. Sweet, 137 N. Y. 435. It was there held that
where counsel had no opportunity to interpose a
formal exception, as where upon return of a jury
into court for further instructions, the trial court,
in the absence of counsel, instructed them errone-
ously, the error might be reviewed in the Court of
Appeals without an exception.

80
THE COURT OF APPEALS.

§ 54. Review of affirmance of judgment or final order
made by unanimous Appellate Division.

We have seen that the court’s jurisdiction is re-
stricted, except in capital cases, to questions of law.
But even over questions of law its jurisdiction is
not unlimited. There is one question, “ though in
its very nature one of law,” (Marden vs. Dorthy,
160 N. Y. 39, 45), which is withdrawn both by the
Constitution and by the Code from the court’s power
of review.

“No unanimous decision of the Appellate Divi-
sion of the Supreme Court that there is evidence
supporting or tending to sustain a finding of fact
or a verdict not directed by the court, shall be
reviewed by the Court of Appeals.” — Constitu-
tion, Art. VI, sec. 9.

This prohibition in the same language has been
embodied in the Code of Civil Procedure (Code
Civil Procedure, section 191, subd. 4, as amended
by c. 946, L. 1895.)!

§ 55. Continued. Ferm of order. What is a unani-
mous judgment of affirmance.

The burden of proving that the decision was
unanimous rests on the party asserting it, in order to
deprive the court of power to review. Recourse
cannot be had to the opinion, but the fact should

1 These provisions apply only to unanimous affirmances
and not to unanimous reversals. People ex rel. Village of
Brockport vs. Sutphin, 166 N. Y. 163, 169.

81
THE COURT OF APPEALS.

be established either by the judgment or by the
certificate of the court appearing on the record.
(Kaplan vs. N. Y. Biscuit Co., 151 N. Y. 171;
Laidlaw vs. Sage, 158 N. Y. 73; Matter of Marcel-
lus, 165 N. Y. 70.)

It is enough, however, that the order should
show that the affirmance was unanimous. It is not
necessary to specify what findings of fact are sus-
tained by the evidence, when the court intends to
sustain them all, or to repeat the language of the
Constitution and apply it generally to all the find-
ings of fact. The effect of a unanimous affirmance,
is a decision that there is evidence supporting the
findings of fact as expressed or necessarily implied.
( People ex rel. Man. Ry. Co. vs. Barker, 152 N. Y.
417; Commercial Bank vs. Sherwood, 162 N. Y.
310.)

A judgment entered upon an order of the Ap-
pellate Division overruling exceptions directed to
be heard by it in the first instance, denying the mo-
tion for a new trial made thereon, and ordering
judgment on the verdict, is a judgment of affirm-
ance within the meaning of this section. (Huda
vs. Am. Glucose Co., 151 N. Y. 549.)

A quorum of four justices, holding an Appellate
Division of the Supreme Court, are in contemplation
of law, the Appellate Division, and their unani-
mous vote of affirmance is a unanimous decision
within the meaning of the Constitution (Art. VI,
sec. 9) and of the Code (Code Civ. Pr., sec. 191,

82
THE COURT OF APPEALS.

sub. 2). (Harroun vs. Brush El. Co., 152 N. Y.
212.)

So an affirmance is unanimous within the mean-
ing of the Constitution and the Code, if, after the
argument, but before the decision, one of the jus-
tices of the Appellate Division dies, and the deci-
sion is rendered by the unanimous vote of the sur-
vivors. (McDonnell vs. N. Y. C.& H. R. R. R.
Co., 159 N. Y. 524; Warn vs. N. Y.C.& H.R. R.
R. Co., 163 N. Y. 525.)

But an affirmance is not unanimous where one
of the justices of the Appellate Division sat, but did
not vote, and the remaining four judges concurred.
(Wangner vs. Grimm, 169 N. Y. 421, 427; Warn
vs. N. Y. C.& H. R. R. R. Co., supra. See also:
Wittleder vs. Citizens El. Illuminating Co., 47 App.
Div. 543.)

In our discussion of the constitutional provision
regulating the effect of a unanimous affirmance, it
will conduce to clearness if we consider separately
its application to judgments or final orders of a
referee or of the court without a jury, and its ap-
plication to judgments entered upon the verdict of
a jury not directed by the court. This distinction is
suggested by the language of the Constitution,
which, by the phrase finding of fact, has reference
to the decision of a court or referee, and by the
term verdict has reference to the verdict of a jury.

83
THE COURT OF APPEALS.

§56. Continued. Power to review a unanimous af-
firmance in actions tried before a referee or
before the court without a jury.

Where upon the face of the decision there appears
a finding of fact which the Appellate Division has
unanimously affirmed, there can, of course, be no
question as to the application of this section of the
constitution. The Court of Appeals must treat the
finding as sustained by the evidence. It matters
not that there is no evidence to support it. It
matters not that the uncontroverted evidence dis-
proves it. The finding having been made and
unanimously affirmed, the court will refuse to go
behind it, even for the purpose of com
whether there is amy evidence to sustain it.

“Findings of fact by the trial court which,
been unanimously affirmed by the Appellate \Divi-
sion cannot be questioned in the Court*f_Asppeals _
as against evidence or without evidence.” (Law-
rence vs. Congregational Church, 164 N. Y. 115;
Krekeler vs. Aulbach, 169 N. Y. 372; Hay vs.
Knauth, 169 N. Y. 2098.)

 
 

§57. Continued. Distinction between findings and
short decision.

More difficult are the questions arising where the
finding is not an express finding appearing on the
face of the decision, but is implied or inferred from
the ultimate conclusion which the referee or the
court has reached. A proper understanding of the

84
THE COURT OF APPEALS.

effect in such cases of this provision of the Con-
stitution requires a brief statement of the forms of
findings and decisions under the existing law.
Before 1894 in all actions tried before a court or
referee, separate findings of fact and conclusions of
law were signed by the court or referee, and formed
part of the judgment roll. Either party had the
right to submit requested findings on which the court
or referee was required to pass. The finding of
any material fact without any evidence to support
it was deemed, if duly excepted to, an error of law
(In re Rogers, 153 N. Y. 316; Israel vs. Man. Ry.
Co., 158 N. Y. 624). The refusal to find a ma-
terial fact, if conclusively established, and if the find-
ing was requested, and the refusal excepted to,
was also an error of law. (Kennedy vs. Porter,
109 N. Y. 526; Bedlow vs. N. Y. Floating Dry Dock
Co., 112 N. Y. 263.) Error of law it also was to
refuse to find one way or the other upon a con-
troverted fact, where a seasonable request for the
finding had been made (Code Civ. Pr., sec. 993, re-
pealed by L. 1894, c. 688; James vs. Cowing, 82 N.
Y. 449). Appeals might be heard either on a case
which set forth the evidence or so much of it as
was material, or on the judgment roll only. If
the appeal was on the judgment roll only, it was
held that the findings must embody every fact es-
sential to the support of the conclusion deduced from
them. On such an appeal no inference would be
drawn that there were other facts not embraced
in the findings, but established by the proof, suffi-
85
THE COURT OF APPEALS.

cient to sustain the judgment. The successful
party was bound to see to it that the decision set
forth facts sufficient to justify the judgment, at the
risk of a reversal in the event of an appeal by the
defeated party on the judgment roll alone. (Roch-
ester Lantern Co. vs. Stiles & Parker Press Co., 135
N. Y. 209; Rumsey vs. Briggs, 139 N. Y. 323).
If, however, the appeal was heard, not only on the
judgment roll, but on a case also, then the Court
of Appeals, for the purpose of affirming a judg-
ment, but not for the purpose of reversing it, had
the power, upon reference to the evidence, to as-
sume that any fact not embraced in the findings, but
warranted by the evidence, was intended to be
found. (Ogden vs. Alexander, 140 N. Y. 356,
362; Ostrom vs. Greene, 161 N. Y. 353, 364; Su-
pervisors of Monroe vs. Clark, 92 N. Y. 391; Bur-
nap vs. Nat. Bk. of Potsdam, 96 N. Y. 125; Thom-
son vs. British Bk. of N. A., 82 N. Y. 1; Standard
Oil Co. vs. Triumph Ins. Co., 64 N. Y. 85; Koehler
vs. Hughes, 148 N. Y. 507, 518; Groves vs. Rice,
144 N. Y. 227; Sherman vs. Foster, 158 N. Y. 587,
596.

The findings thus implied could not, of course,
contradict, but only supplement the findings as ex-
pressed (Armstrong vs. Dubois, 90 N. Y. 95, 99);
nor could findings ever be implied unless there was
evidence in the record sufficient to sustain them.
Findings, moreover, would not be implied upon
controverted evidence unless consistent with the gen-
eral scheme and theory of the findings expressed

86
THE COURT OF APPEALS.

(Hollister vs. Mott, 132 N. Y. 18; Clemans vs.
Supreme Assembly Royal Society, 131 N. Y. 485;
post, p. 94.) That was the state of the law till

1894.
§ 58. Continued. The short decision.

In 1894, however, by chapter 688 of the laws of
that year, important modifications of the existing
practice were made. The court or referee was em-
powered to substitute for the old form of findings a
decision stating concisely the grounds on which the
issues had been determined (Code Civil Procedure,
sec. 1022). This is popularly spoken of as the new
or the “short” form of decision, though the lat-
ter designation in many cases has proved a misno-
mer (Dr. David Kennedy Corporation vs. David
Kennedy, 165 N. Y. 353). It has supplanted to a
very large extent the old findings, and it has led to
very important consequences, not only because of
the changes which it has introduced directly, but also
because of those which have resulted from the com-
bined action of this section of the Code and of the
constitutional restrictions in cases of unanimous

affirmance.
§ 59. Continued.

The effect of the short form of decision was the
subject of consideration by the Court of Appeais in
Trustees of Amherst College vs. Ritch, 151 N. Y.
282. That case was decided by the general term of
the Supreme Court, before the adoption of the pres-
ent constitution, and hence it was not governed by

87
THE COURT OF APPEALS.

the clause which denies to the Court of Appeals the
power to consider whether a finding unanimously
affirmed is supported by any evidence. The court
held that the short decision was the equivalent of a
general verdict of a jury in favor of the successful
party, and that the same presumpticns arose in its
support. ‘ All the facts warranted by the evidence
and necessary to support the judgment below are
presumed to have been found” (Trustees of Am-
herst College vs. Ritch, supra; see also, Petrie vs.
Trustees Hamilton College, 158 N. Y. 458; Bartlett
vs. Goodrich, 153 N. Y. 421; Critten vs. Chemical
Nat. Bk., 171 N. Y. 219, 231; Dannhauser vs. Wal-
lenstein, 169 N. Y. 199, 205; City of Niagara Falls
vs. N. Y. C. & H. R. R. R. Co., 168 N. Y. 610,
611; Bly vs. Edison E. I. Co., 172 N. Y. 1, 6.)

It matters not that the decision is silent as to
many of the facts essential to sustain the judgment.
Its deficiencies are supplemented by presumptions.
Of course. if the decision finds certain facts against
the prevailing party, the Appellate Court cannot im-
ply a finding contradicting the decision (Bomeisler
vs. Forster, 154 N. Y. 223, 237); but if the deci-
sion is simply silent, all facts warranted by the
evidence will be deemed to have been found in favor
of the successful party. From this also it follows
that where an appeal is taken on the judgment roll
alone, and the decision is in the short form, the
old rule which held that no findings would be im-
plied ceases to apply. On the contrary, the court
will presume, even where the appeal is on the judg-

88
THE COURT OF APPEALS.

ment roll alone, that all issues, where such a deter-
mination has not been expressly negatived, have
been resolved in favor of the successful party. (Mat-
ter of Health Department vs. Weekes, 22 App. Div.
110; Gardner vs. N. Y. M. S. & L. Ass’n, 67 App.
Div. 141). The practical result is that the less a
decision says, the more likely it is to stand the test
of appeal.

§ 60. Continued. Review of unanimous affirmance
where the decision is in the short form.

We have said that all facts warranted by the evi-
dence and necessary to sustain the judgment will,
after an affirmance by the Appellate Division of a
judgment entered on a short decision, be presumed
to have been found. That is so, whether the affirm-
ance is unanimous or not (Critten vs. Chem. Nat.
Bk., 171 N. Y. 219, 231). But where it is unani-
mous, the presumption is still broader. The short
decision, being the equivalent of a general verdict,
imports a determination of every issue in favor of
the successful party, unless a contrary determina-
tion is expressly stated. Thus, where the decision
is for the plaintiff, all the material averments of the
complaint will be presumed to have been found in
favor of the plaintiff, and all issues arising upon
defenses pleaded in the answer will be presumed
to have been resolved against the defendant (Mar-
den vs. Dorthy, 160 N. Y. 45; Consolidated Elec-
tric Storage Co. vs. Atlantic Trust Co. 161 N. Y.
605, 611). The constitutional command then

89
THE COURT OF APPEALS.

comes in aid of that presumption, and requires the
court to imply not merely the findings necessary to
sustain the judgment, but the evidence necessary
to sustain the findings thus implied. “ The decision
of the courts below was in favor of the plaintiff
generally, and hence we are bound to assume not
only that all facts alleged by the plaintiff are sus-
tained by evidence, but that all facts alleged by the
defendants by way of defense not found have been
rejected or expressly negatived. The constitution
and the statute which declare that no unanimous
decision of the Appellate Division that there is evi-
dence supporting or tending to sustain the findings
of fact shall be reviewed in this court, apply not
only to the facts affirmatively stated in favor of the
successful party, but to those expressly or impliedly
negatived against the party appealing’’ (Marden
vs. Dorthy, supra). “The conclusiveness of the
judgment is such as to preclude us from an exam-
ination into the evidence in an inquiry as to its
sufficiency either to sustain the material facts al-
leged by the plaintiff, or to negative those alleged
by the defendant in defense or by way of counter-
claim’’ (Consol. Elec. Storage Co. vs. Atlantic
Trust Co., supra). ‘‘ Upon appeal from a judg-
ment of the Appellate Division entered upon a unan-
imous decision that there is evidence supporting or
tending to sustain the findings of fact of a referee,
the Court of Appeals cannot review a question of
law arising upon conceded facts not appearing in the
findings made” (Hilton vs. Ernst, 161 N. Y. 226;

go
THE COURT OF APPEALS.

Hunt vs. Hunt, 171 N. Y. 396, 402). The result, of
course, is that actions may conceivably be decided
contrary to the real truth and justice of the case, in
obedience to an elaborate system of artificial pre-
sumptions. The trial court decides, let us assume,
that the plaintiff is entitled to judgment. The de-
fendant relies upon admitted facts as a defense. The
trial court, being of the opinion that they do not
constitute a defense, awards judgment to the plain-
tiff in a decision which is silent as to the facts relied
on by the defendant. Of course, as a matter of
fact, the court did not mean to find that no such
facts existed. They were established by uncontro-
verted proof, and the only reason that the court
omitted to find them was that it deemed them im-
material. Under the old form of findings the de-
fendant would probably have submitted requests
to find which would have brought the facts into the
decision, and enabled the Appellate Court to treat
them as found. But under the new practice the
parties are helpless to regulate the form of the de-
cision, and the court, through silence, as effectually
as through an adverse finding, may negative the
existence of facts which everyone conceded. What
is the result? The Court of Appeals, after a unani-
mous affirmance, is called upon to presume that
those uncontroverted facts were found against the
defeated party, because the decision is silent as to
their existence. Though the evidence is uncon-
troverted that certain things are true, the court is
called upon to presume that the evidence sustains

gI
THE COURT OF APPEALS.

the finding that they are not true (Hilton vs. Ernst,
164 NN. ¥. 2a Dnt ve. Dan, rr N. Y..206,
402). Thus by two fictions,— one the fiction that
the trial judge negatived the existence of uncon-
troverted facts, and the other the fiction that there
was evidence to sustain him in so doing — the
court is led to the conclusion that there must be
an affirmance of the judgment. A question, in its
origin one of law, Do certain admitted facts con-
stitute a defense? becomes by the legerdemain of
an appeal and a unanimous affirmance transformed
into a question of fact. No doubt the purpose of
the Constitution was to restrict the Court of Ap-
peals to questions of law, but under the rule which
the Constitution lays down, the court in many
an instance never reaches the real questions of
law which underlie the case. Its progress is
inexorably barred by fictions and presumptions.
While the crucial question of law which de-
termines the rights of the parties and the
merits of the controversy is thus excluded from the
court’s consideration, through the fiction that all
the facts as to which the decision is silent have been
found against the defeated party with the support
of sufficient evidence, while the very kernel of the
suit is thus extracted, the court is left to deal with
exceptions to evidence and to incidental rulings,
with the petty details of the litigation, instead of the
broad principles of law that underlie and control it.
Such in its practical workings has been the effect
of the constitutional command that no finding of

g2
THE COURT OF APPEALS.

fact shall be reviewed in the Court of Appeals after
a unanimous affirmance.

§61. Continued. Review of unanimous affirmance
where the decision is in the form of express
findings.

In the foregoing statement of the effect of the
constitutional presumption in cases of unanimous
affirmance, we have assumed that the decision re-
viewed was in the new or short form. Language
is used in many cases which would seem to imply
that where separate findings are made there is no
presumption in support of the judgment that other
facts warranted by the evidence and necessary to
support the judgment were found. Thus, in Dann-
hauser vs. Wallenstein (169 N. Y. 199, 205), it
was said: “The decision of the trial court was
in the so-called short form, and is therefore forti-
fied by the presumption that all the facts warranted
by the evidence and necessary to support the judg-
ment were impliedly found by the court” (citing
Bomeisler vs. Forster, 154 N. Y. 229; Trustees Am-
herst College vs. Ritch, 151 N. Y. 282; Petrie vs.
Trustees Hamilton College, 158 N. Y. 463). But
even when the decision is in the form of findings,
presumptions — though less broad than when the
decision is in the short form,— are none the less
indulged in support of its correctness. A long line
of cases decided many years before the short form
was adopted, established the rule that, for the pur-
pose of affirming a judgment, the court will look

93
THE COURT OF APPEALS.

into the evidence and imply any findings warrant-
ed thereby and necessary to sustain the conclusion,
especially if fairly involved in the findings made
(Ogden vs. Alexander, 140 N. Y. 356; Groves
vs. Rice, 148 N. Y. 227; First Nat’l Bk. vs. Chal-
mers, 144 N. Y. 432, 436; Marvin vs. Brewster &
Co., 55 N. Y. 547; Galle vs. Tode, 148 N. Y. 270;
Hays vs. Miller, 70 N. Y. 112; Price vs. Oswego
R. R. Co., 50 N. Y. 213; Meyer vs. Lathrop, 73
N. Y. 315). On the other hand, under the earlier
practice, the court refused to imply findings upon
conflicting evidence, for the purpose of sustaining
a judgment on some theory radically different from
that which was the basis of the actual findings
(Hollister vs. Mott, 132 N. Y. 18; Clemans vs. Su-
preme Assembly Royal Society, 131 N. Y. 485).
No findings would be implied, moreover, which
were antagonistic to the findings made (Armstrong
vs. Dubois, 90 N. Y. 95, 99; Oberlander vs. Spiess,
45 N. Y. 175); nor would any finding be implied as
to a fact which the referee had been asked but had
refused to find, though he had omitted to find the
contrary (Meyer vs. Amidon, 45 N. Y. 169).

§ 62. Continued.

The main difference, however, between the old
form and the new form of decision, so far as the
presumption supporting its correctness is concerned,
appears in cases where the affirmance is unani-
mous. The short decision being the equivalent of a
general verdict, all the issues are presumed, unless

94
THE COURT OF APPEALS.

the contrary expressly appears, to have been de-
cided in favor of the successful party; and the is-
sues impliedly decided, as well as those expressly
decided, must be presumed, where the affirmance
is unanimous, to have been determined upon suffi-
cient evidence. On the other hand, where separate
findings are unanimously affirmed, the findings ex-
pressly made must be deemed supported by sufficient
evidence, but the courts have not gone so far as
‘to hold, where the findings as expressed are in-
sufficient to support the judgment, that other find-
ings will be implied, under the old form of decision,
even after a unanimous affirmance, unless there is
evidence to support them (Krekeler vs. Aulbach,
169 N. Y. 372; Hay vs. Knauth, 169 N. Y. 298;
and cf. Hollister vs. Mott and Clemans vs. Supreme
Assembly, supra). It is in thé extension to im-
plied findings of the constitutional presumption that
the essential difference between the two forms of
decision for the purpose of review upon appeal ap-

pears.

§ 63. Rule as to effect of unanimous affirmance ap-
plies whether findings are express or implied.

It will be seen, of course, that much of the hard-
ship resulting from the constitutional command has
come from the application of that command to im-
plied as well as to express findings, in cases where
the short decision has been adopted. Very likely
that extension of its meaning was necessary.

vo
THE COURT OF APPEALS.

Whether it was or was not, the court, at an early
date in the history of its construction of this clause,
held that the clause applied not only to express
findings, but to findings that were implied as well.

In People ex rel. Manhattan Railway Co. vs.
Barker (152 N. Y. 435), the Court said:

“The phrase ‘a finding of fact’ may mean sim-
ply a finding expressed in words, or, also, a finding
implied from the nature of the decision (Amherst
College Case, 151 N. Y. 321). Both kinds were
known to the law when the convention sat, for sec-
tion 1022 of the Code, which was then in force,
provided that the decision, upon a trial of the whole
issues of fact, might separately state the facts found
and the conclusions of law, or it might state con-
cisely the grounds upon which the issues were de-
cided, and direct the judgment to be entered there-
on. The latter kind was similar, both in form and
effect, to the general verdict of a jury, and com-
mingled fact and law in the same way. We have
recently held that all the facts warranted by the
evidence and necessary to support the judgment, are
presumed to have been found by a decision that
does not state the facts (Amherst College Case, su-
pra). The legislature, as the convention is pre-
sumed to have known, had done away with find-
ings of fact, absolutely, as formerly made upon re-
quest, and in all cases, as a matter of right, yet
with this knowledge, it used language that ap-
plies with equal force to all findings of fact made
by courts or referees, whether written out in words

96
THE COURT OF APPEALS.

or not, the same as it applied to all findings of fact
made by a jury, whether general, without express-
ing the facts, or special, by expressing them in full.
It cannot be that the legislature, by prohibiting
express findings of fact, could practically abolish
the constitutional provision in question, yet this
would be possible, unless it applies to implied find-
ings, as well as those written out in extenso. In
view of the primary object of the judiciary article
to confine this court to the great duty of settling
the law, and to give it time to do the work well,
I think that the convention used the phrase ‘ finding
of fact’ in no narrow or technical sense, but with
the broad and liberal meaning which, alone, would
accomplish its important purpose.”

§ 64, Tllustrations of the application of the rule as to
the effect of a unanimous affirmance.

These principles have been applied to judgments
of the special term, or of referees, unanimously af-
firmed by the Appellate Division, in a great variety
of cases. Thus, in Metcalf vs. Moses (161 N. Y.
587), a finding that a judgment was fraudulent was
held after unanimous affirmance at the Appellate
Division to be conclusive. In Kernochan vs. Man-
hattan Ry. Co., 161 N. Y. 339, a finding as to the
fee and rental damage in one of the usual suits
against the elevated railroads, was held, after unan-
imous affirmance at the Appellate Division, to pre-
clude the Court of Appeals from questioning the

97
THE COURT OF APPEALS.

amount allowed. In Genet vs. D. & H. Canal Co.
(163 N. Y. 173), a finding as to the law of another
State was held to be conclusive. In Consolidated
Electrical Storage Co. vs. Atlantic Trust Co. (161
N. Y. 605), a finding that an agreement truly ex-
pressed the intention of the parties was held con-
clusive. The same rule has been applied to mary
classes of findings and in many classes of cases.
(See, also: Lawrence vs. Congregational Church,
164 N. Y. 115; Matter of Hall, 164 N. Y. 196;
Clark vs. Nat. Shoe & Leather Bk., 164 N. Y. 498;
People ex rel. B’way Improvement Co. vs. Barker,
158 N. Y. 322; Consolidated Ice Co. vs. The Mayor,
166 N. Y. 238; City Niagara Falls vs. N. Y. C.
& H.R. R.R. Co., 168 N. Y. 610; Hilton vs. Ernst,
161 N. Y. 228; Marden vs. Dorthy, 160 N. Y. 39;
Hay vs. Knauth, 169 N. Y. 298; Krekeler vs. Aul-
bach, 169 N. Y. 372; Fuller vs. City of Mt. Vernon,
171 N. Y. 247, 254.)

A statement in a decision that there is no evidence
on a material question, is held to be a finding of
fact protected from review when unanimously af-
firmed (Brokaw vs. Duffy, 165 N. Y. 151; City of
Niagara Falls vs. N. Y.C. & H. R. R. R. Co., 168
N. Y. 610, 622). On the other hand, the court
will not imply a finding which contradicts the ad-
mission of the pleadings, even where the affirmance
is unanimous (Rodgers vs. Clement, 162 N. Y.
422; compare Bates vs. Holbrook, 171 N. Y. 460,
472).

98
THE COURT OF APPEALS.

§ 65. Rule as to the effect of unanimous affirmance ap-
plicable to final orders as well as judgments.

It has been repeatedly held that the clause of the
Constitution now under discussion applies to special
proceedings as well as to actions, and to final or-
ders as well as to judgments (People ex rel. Man-
hattan Ry. Co. vs. Barker, 152 N. Y. 417; People
ex rel. Broadway Improvement Co. vs. Barker, 155
N. Y. 322). It applies also to the findings of a
board, such as the board of railroad commission-
ers, when unanimously affirmed at the Appellate
Division (People ex rel. Loughran vs. Board Rail-
road Commissioners, 158 N. Y. 421). But where
the only question involved in a special proceeding is
the construction of a deed or of a statute, and there
is no question of fact in controversy, the rule under
discussion as to the effect of a unanimous affirmance
has no application. Such was the decision in Mat-
ter of Green, 153 N. Y. 223, where the Surrogate
held that a deed set forth in the record was not a
transfer intended to take effect after the grantor’s
death, within the meaning of the transfer tax law,
and his decision was unanimously affirmed by the
Appellate Division and reviewed in the Court of
Appeals. In accordance with the same principle a
judgment construing a will, may be reviewed in the
Court of Appeals, though unanimously affirmed at
the Appellate Division (Williams vs. Jones, 166
N. Y. 522, 526).
THE COURT OF APPEALS.

§ 66. Power to review a unanimous affirmance of a
judgment in actions tried before a jury.

The Constitution commands that after a unani-
mous affirmance at the Appellate Division, a verdict
of a jury, not directed by the court, shall be pre-
sumed to have support in the evidence. It is clear,
therefore, and so the court has consistently held,
that the court has no power in such a case to review
the question whether there was any evidence suffi-
cient to justify the submission of the case or of any
issue therein to the jury. This restriction on the
court’s power cannot be evaded by varying the
form of the exception. Whether the exception is
to the ruling submitting the case to the jury, or
to the ruling refusing a nonsuit, or to the ruling re-
fusing to direct a verdict, or to a charge that there is
or is not evidence to sustain a verdict, the exception
is unavailing after a unanimous affirmance. No
doubt if the complaint set forth facts from which
the necessary inference would be that no cause of
action could be proved, an exception to a refusal to
nonsuit, would be reviewable in the Court of Ap-
peals, but the motion would then be in the nature,
not of a demurrer to the evidence, but of a demur-
rer to the complaint. (Matter of Health Dep’t vs.
Weekes, 22 App. Div. 110). If, however, consist-
ently with the issues raised by the pleadings, a case
could conceivably be made out sufficient to carry
the case to the jury, the Court of Appeals, after a
unanimous affirmance, will decline, regardless of

100
THE COURT OF APPEALS.

the form in which the point may be presented, to
review the question whether such a case was or was
not made out by the evidence.

“ The unanimous affirmance of the judgment con-
cludes this court, and we are required to assume
in such a case that the evidence was of such char-
acter as to justify the submission of the disputed
questions to the jury. It is quite true that the
question whether there is any evidence tending to
prove a fact is one of law, but the convention that
framed the Constitution and the people adopting it
had, of course, the same power to limit the juris-
diction of this court with respect to questions of
law as they had with respect to questions of fact,
and the effect of that limitation upon the power of
this court to review the unanimous decision below
that there was evidence to sustain the verdict is to
withdraw a particular question of law which was
formerly reviewable here from our jurisdiction. It
was the intention of the framers of the Constitution
to make the Appellate Division, when unanimous,
the court of last resort upon this particular ques-
tion.” (Meserole vs. Hoyt, 161 N. Y. 61.)

“The question of law, whether there is any evi-
dence supporting or tending to sustain a finding or
verdict on a question of fact, is not reviewable in
the Court of Appeals, when the judgment has been
affirmed unanimously by the Appellate Division,
whatever may be the form of the exception, whether
to a ruling submitting the case to the jury, refusing
a nonsuit, or to a charge that there is or is not evi-

101
THE COURT OF APPEALS.

dence, as the case may be, to warrant a finding or
verdict on the disputed question of fact. * * *

“When the Court of Appeals is prohibited from
reviewing a specified question of law, it necessarily
follows that any exception taken at the trial, direct-
ed to that particular question alone, cannot be re-
viewed and is not available in that court.” (Cro-
nin vs. Lord, 161 N. Y. 90. To the same effect,
see: Szuchy vs. Hillside Coal & Iron Co., 150 N.
Y. 219; Butler vs. Mail & Ex. Pub. Co., 171 N. Y.
208, 211; Keough vs. Albany & Troy Steamboat
Co., 171 N. Y. 635.)

§ 67. Illustrations of the application of the foregoing
rules.

The rules above stated have been applied in many
cases. For illustration, the question as to whether
a contract is void under the statute of frauds is
ordinarily a question of law reviewable by the Court
of Appeals, under an exception taken to a refusal
to nonsuit upon that ground; but in a case where
that question is dependent upon the determination
of a question of fact, viz., as to whether there was
a consideration sufficient to sustain the contract, and
that has been settled by a verdict and a unanimous
affirmance by the Appellate Division of the judg-
ment entered thereon, exceptions to the refusal to
nonsuit upon that ground raise no question which
the Court of Appeals has power to review. (Lam-
kin vs. Palmer, 164 N. Y. 201. See, also: Ayres

102
THE COURT OF APPEALS.

vs. D. L. & W. R. R. Co., 158 N. Y. 254; Lewis
vs. Long Island R. R. Co., 162 N. Y. 52; Kleiner
vs. Third Ave. R. R. Co., 162 N. Y. 193; Godfrey
vs. N. Y. C.& H. R. R. R. Co., 161 N. Y. 566,
568; Griffen vs. Manice, 166 N. Y. 188; Rider vs.
Syracuse R. T. Ry. Co., 171 N. Y. 139; Nat. Re-
vere Bk. vs. Nat. Bk. of Republic, 172 N. Y. 101;
Bank of M. V. vs. Weston, 172 N. Y. 258.)

§ 68. What questions are reviewable in actions tried
before a jury notwithstanding a unanimous
affirmance.

On the other hand, it is still true that the trial
judge must correctly’ charge the jury as to every
proposition of law submitted by counsel and per-
tinent to the issues. If, therefore, a proposition of
law is submitted, which the court declines to charge,
an exception to the refusal, unless the. proposition
be that there is or is not evidence upon an issue,
is reviewable in the Court of Appeals; and the
court’s power of review is not defeated because, in
order to determine the pertinency of the request or
the materiality of the error, it becomes essential to
examine the facts. (McGuire vs. Bell Telephone
Co., 167 N. Y. 208; Carpenter vs. Taylor, 164 N.
Y. 180.) The error, moreover, is not cured, be-
cause there were other issues broad enough to sus-
tain the verdict, on which the jury was correctly
charged, for the court is unable to say, upon appeal,
that the verdict of the jury did not proceed on the

103
THE COURT OF APPEALS.

very issue as to which error was committed (Bank
of State of N. Y. vs. Southern National Bank, 170
N. Y. 1, 5; Ives vs. Ellis, 169 N. Y. 85).

§ 69. Continued.

The distinction between those exceptions that
are and those that are not cut off from review in the
Court of Appeals, after the unanimous affirmance of
a judgment entered on a jury’s verdict, is clearly
indicated in McGuire vs. Bell Telephone Co., 167 N.
Y. 208. That was an action brought by a line-
man in the employ of the defendant, a telephone
company, for personal injuries. The injuries were
suffered while repairing the defendant’s wires.
These wires were strung on a pole belonging to
the Rochester Gas & Electric Company. The de-
fendant excepted to the court’s charge that the
ownership of the pole by another company did not
relieve it from responsibility, and asked the court to
charge that it owed the plaintiff no duty to inspect
the pole. The Court of Appeals held that the
‘unanimous affirmance did not preclude review of
these exceptions, though the trial judge must nec-
essarily have dismissed the complaint and have held
that there was no evidence to submit to the jury,
had he charged as the defendant requested. Speak-
ing by Cullen, J., the Court said (167 N. Y. 211):

“Tt will thus be seen that the question raised
by these exceptions, whether the defendant owed
the plaintiff any duty to inspect the pole, it being
owned by another company, is one of the very

104
THE COURT OF APPEALS,

questions necessarily determined by the denial of
the motion to dismiss the complaint. But as the
question was raised without any request for the
direction of a verdict or for a nonsuit, the appel-
lant is entitled to have it passed upon by this
court. Upon the manner or shape in which the
question of law is presented, depends the right of
review by us. In the case of a unanimous af-
firmance, we are precluded by the Constitution from
looking into the record to see if there is any evi-
dence to support the verdict. But a party is en-
titled to have his case submitted to the jury with
correct instructions as to the law, and we are equal-
ly precluded from looking at the evidence to see
whether the propositions requested to be charged,
would logically have been fatal to the disposition of
the motion for a nonsuit or for direction of a ver-
dict.” (See, also, Carpenter vs. Taylor, 164 N. Y.
180. )

§ 70. Unanimous affirmance of judgment on verdict
directed by the court. What is a directed verdict.

It is true that by the Constitution and the statute,
the rule that the Court of Appeals shall not consider
the sufficiency of evidence to sustain a verdict, after
a unanimous affirmance by the Appellate Division,
applies only to a verdict not directed by the Court.
(Second Nat. Bk. vs. Weston, 172 N. Y. 250.)
But a verdict is not directed by the court within
the meaning of this exception where there is a
waiver of the right to go to the jury and a consent

105
THE COURT OF APPEALS.

that the issues be determined by the court, though
the determination take the form of a direction of a
verdict. It is well settled that where both parties
ask for the direction of a verdict, and the party
whose request is denied does not thereupon request
to go to the jury on the facts, this amounts to a
submission of the whole case to the trial judge, and
his decision upon the facts has the same effect as
if the jury had found a verdict after the submis-
sion of the case to them. (Sigua Iron Co. vs.
Brown, 171 N. Y. 488, 493; Trimble vs. N. Y. C.
& H.R. R. R. Co., 162 N. Y. 84, 92; Adams vs.
Roscoe Lumber Co., 159 N. Y. 176, 180; Thomp-
son vs. Simpson, 128 N. Y. 270, 283). In such a
case although there is a verdict in form, in reality
the finding is by the court. The verdict is not di-
rected within the meaning of the Constitution, but
by consent of both parties, the court decides the
question as one of fact, and the verdict simply ex-
presses the result. Hence the rule in cases of unan-
imous affirmance may be applied the same as if the
jury had been withdrawn, the case submitted to the
court for decision, and written findings made ( West-
ervelt vs. Phelps, 171 N. Y. 212; People ex rel.
Gleason vs. Scannell, 172 N. Y. 316).

This rule operates to protect the party in whose
favor the judgment is directed to the same extent as
if his right had been submitted to the jury, but it
assumes that there was.a question which might have
been submitted, and it merely cures the objection to
the action of the court in directing a verdict instead

106
THE COURT OF APPEALS.

of submitting the issues. But where the party
against whom the judgment is directed claims that
there was no evidence to submit to the jury, but that
he was entitled to a direction in his. favor, the unani-
mous affirmance of the judgment will not, it seems,
deprive the court of the right to pass upon that
claim. (Second Nat. Bank vs. Weston, 172 N. Y.
250, 254).

§ 71. Does the rule as to the effect of a unanimous af-
firmance apply to criminal causes?

Whether the provision of the Constitution as to
the effect of a unanimous affirmance applies to crim-
inal causes has perhaps not been definitely deter-
mined. In People vs. Helmer, 154 N. Y. 596, a
majority of the court united in an opinion which
held that it does apply. But there was a strong dis-
sent, and since the court discovered an error in the
charge sufficient to reverse the judgment, it was
probably unnecessary to determine whether the suffi-
ciency of the evidence was also open to review. In
later cases the court has held that other provisions
of sec. 9 of Art. VI of the Constitution, such as
the requirement of stipulations for judgment abso-
lute upon appeals from orders granting a new trial,
and the requirement that appeals from interloc-
utory orders and judgments shall be allowed by the
Appellate Division, have no application to criminal
causes (People vs. Miller, 169 N. Y. 339; People
vs. Drayton, 168 N. Y. to, 13). In People vs.
Miller, supra, the broad language was used that

107
THE COURT OF APPEALS.

none of the provisions of section g are applicable
to criminal prosecutions, and there was an intima-
tion that the statements in People vs. Helmer, were
obiter. Reading the provisions as to the effect of
unanimous affirmance in the light of the context,
it is doubtful whether they should be extended to
criminal causes. It is to verdicts not directed by
the court that the Constitution refers; and the im-
plication is that the provision applies only to actions
where verdicts may or may not be directed by the
court, i. e., to civil causes. When to this, we add
that other provisions in the same section are appli-
cable to civil causes only (People vs. Miller, supra),
the argument in favor of a like restriction of the
clause as to unanimous affirmance, is certainly co-
gent. The decisions of the Court of Appeals leave
the question unsettled; and it must await for its
solution a clear and authoritative statement by that
tribunal.

§ 72. Dismissal of appeal where unanimous affirmance
leaves no question for review.

Where the result of the constitutional presump-
tion in cases of unanimous affirmance is plainly to
leave no: substantial question open for review, the
appeal may be dismissed. The rules governing mo-
tions for relief upon that ground were laid down
in Szuchy vs. Hillside Coal & Iron Co., 150 N. Y.
219. (See, also: Dalzell vs. L. I. R. R. Co., 119 N.
Y. 626; Wright vs. Hunter, 46 N. Y. 409; Stough-
ton vs. Lewis, 2 How. Pr. N. S. 331.) If, there-

108
THE COURT OF APPEALS.

fore, an appeal is taken from a judgment entered on
a unanimous affirmance, with the result that only the
exceptions to incidental rulings are open to review,
and the Court can see that the exceptions are frivol-
ous, it will grant a motion to dismiss the appeal,
without requiring the respondent to wait till the ap-
peal is reached in its regular order on the calendar.
The reports abound in illustrations of the exercise
of this power. (See, e. g., Young vs. Gilmour, 171
N. Y. 680; Logan vs. Simpson, 169 N. Y. 599;
Brousseau vs. Tilyou, 169 N. Y. 599; Colwell vs.
Chapter General of America, 167 N. Y. 612.)

To sustain a motion, however, to dismiss an ap-
peal before argument, on the ground that the judg-
ment below has been unanimously affirmed by the
Appellate Division as to the facts, and that the
exceptions in the case are frivolous, the exceptions
must be so obviously frivolous on their face as to
require no argument to demonstrate it (Bachrach
vs. Manhattan Ry. Co., 154 N. Y. 168). On such
a motion the moving party should furnish the court
with at least one copy of the record in the court
below, and if any reason exists why he cannot do so,
it should be stated in the moving papers (Hutchin-
son vs. Wood, 153 N. Y. 329).

We have seen that when the Court of Appeals has
jurisdiction to review an order or judgment, it is
confined to the consideration of questions of law
presented thereby. We have also seen that one
question of law, i. e., the existence of any evidence
to support a finding of fact or a verdict not directed

109
THE COURT OF APPEALS.

by the Court, is, in cases of unanimous affirmance,
withdrawn from the Court’s jurisdiction. But the
provisions of the Constitution and of the statutes
defining the classes of orders and judgments that
the Court has jurisdiction to review have yet to be
considered.

§ 73. What orders and judgments are reviewable in
the Court of Appeals.

The Constitution (Art. VI, sec. 9) provides:
“Except where the judgment is of death, appeals
may be taken as of right to said court only from
judgments or orders entered upon decisions of the
Appellate Division of the Supreme Court finally
determining actions or special proceedings, and from
orders granting new trials on exceptions where the
appellants stipulate that upon affirmance judgment
absolute shall be rendered against them. The Ap-
pellate Division in any department may, however,
allow an appeal upon any question of law which in
its opinion ought to be reviewed by the Court of
Appeals. The legislature may further restrict the
jurisdiction of the Court of Appeals, and the right
of appeal thereto, but the right to appeal shall not
depend upon the amount involved.”

The Constitution, it will be seen, contemplates
two classes of appeals: (1) appeals from judgments
or orders finally determining actions or special pro-
ceedings, or orders granting new trials on exceptions
where the appellants stipulate for judgment abso-

110
THE COURT OF APPEALS.

lute, and (2) appeals from intermediate or inter-
locutory orders or judgments.

In the first class of cases, an appeal lies as of
right, subject to further restriction by legislative
enactment. In the second class of cases, no appeal
lies as of right, but the Appellate Division may al-
low an appeal upon any question of law arising in
such cases, which in its opinion ought to be re-
viewed by the Court of Appeals, subject again to
the right of the legislature to impose further re-
strictions. The Legislature has acted with refer-
ence to both classes of appeals. It has provided
(sec. 190, Code Civil Procedure) that from and
after the last day of December, 1895, the juris-
diction of the Court of Appeals shall in civil ac-
tions and proceedings be confined to the review
upon appeal of the actual determinations made by
the Appellate Division of the Supreme Court in
either of the following cases, and no others:

“ . Appeals may be taken as of right to said
court from judgments or orders finally determining
actions or special proceedings, and from orders
granting new trials on exceptions where the appel-
lants stipulate that upon affirmance, judgment ab-
solute shall be rendered against them.

“2, Appeals may also be taken from determina-
tions of the appellate division of the supreme
court in any department where the appellate divi-
sion allows the same and certifies that one or more
questions of law have arisen, which in its opinion,
ought to be reviewed by the court of appeals, in

III
THE COURT OF APPEALS.

which case the appeal brings up for review the ques-
tion or questions so certified and no other; and the
court of appeals shall certify to the appellate divi-
sion its determination upon such questions.”

If the legislature had stopped there, its enact-
ments would have been substantially declaratory of
the constitutional provisions. Through successive
enactments, however, it has further limited the
jurisdiction of the court by withdrawing jurisdic-
tion in the following classes of cases (subd. 1 and
2, sec. IQI):

“1. No appeal shall be taken to said court in any
civil action or proceeding commenced in any court
other than the supreme court, court of claims,
county court or surrogate’s court, unless the ap-
pellate division of the supreme court allows the
appeal by an order made at the term which rendered
the determination, or at the next term after judg-
ment is entered thereupon, and shall certify that,
in its opinion, a question of law is involved which
ought to be reviewed by the court of appeals.

“2. No appeal shall be taken to said court from
a judgment of affirmance hereafter rendered in an
action to recover damages for a personal injury or
to recover damages for injuries resulting in death
or in an action to set aside a judgtment, sale, trans-
fer, assignment, conveyance or written instrument,
as in fraud of the rights of creditors, or in an ac-
tion to recover wages, salary or compensation for
services, including expenses incidental thereto, or
damages for breach of any contract therefor, or in

112
THE COURT OF APPEALS.

an action upon an individual bond or individual
undertaking on appeal, when the decision of the ap-
pellate division of the supreme court is unani-
mous, unless such appellate division shall certify
that in its opinion a question of law is involved
which ought to be reviewed by the court of ap-
peals, or unless, in case of its refusal to so certify,
an appeal is allowed by a judge of the court of
appeals.”

The provision withdrawing jurisdiction in ac-
tions or proceedings commenced in any court other
than the Supreme Court, County Court or Surro-
gate’s Court, in the absence of a certificate of the
Appellate Division, was adopted in 1895 (Laws of
1895, Ch. 946); and in 1898 (L. 1898, Ch. 574),
the Court of Claims was added to this list. The
provision withdrawing jurisdiction, in the absence
of a certificate of the Appellate Division, over ap-
peals from judgments in actions to recover damages
for personal injury or for injuries resulting in
death, or in an action to set aside a judgment or
transfer as in fraud of creditors, was adopted in
1896 (Laws of 1896, Ch. 559). The provision
withdrawing jurisdiction, in the absence of a cer-
tificate of the Appellate Division, in an action for
wages, etc., was adopted in 1898 (Laws of 1898,
Ch. 574). The provision withdrawing jurisdic-
tion, in the absence of a certificate of the Appellate
Division, in an action upon an individual bond or
individual undertaking on appeal, was adopted in
1900 (L. 1900, Ch. 592).

ie
THE COURT OF APPEALS.

§ 74. Distinction between final judgments and final
orders.

In Van Arsdale vs. King (155 N. Y. 325), the
court, referring to the provision of the Code allow-
ing appeals as of right to the Court of Appeals,
from judgments or orders finally determining ac-
tions or special proceedings, said:

“This language is not only terse, but very clear
and explicit. The words ‘finally determining’
qualify the nature of both judgments and orders
that may be appealed from, and hence the judgment
must be a final judgment and the order a final order.
The word ‘actions’ relates to the antecedent word
‘ judgment,’ and hence it must be a judgment in an
action. The words ‘special proceedings’ relate to
the antecedent word ‘orders’ and hence the order
must be an order in a special proceeding. The
whole provision limits appeals to this Court to three
classes: (1) appeals from final judgments in ac-
tions; (2) appeals from final orders in special pro-
ceedings; (3) appeals from orders granting new
trials on exceptions where a stipulation was given
for judgment absolute. This leaves no room in
this action for an appeal from any other kind of an
order as matter of right.”

§ 75. Continued.

It becomes important, therefore, to determine
what is a final judgment or final order or an order
granting a new trial on exceptions within the mean-
ing of these provisions.

114
THE COURT OF APPEALS.

By sec. 3333 of the Code of Civil Procedure, the
word action is defined as an ordinary prosecution in
a court of justice by a party against another party
for the enforcement or protection of a right, the
redress or prevention of a wrong or the punish-
ment of a public offense. By sec. 3334, it is pro-
vided, that every other prosecution by a party for
either of the purposes specified in the last section is
a special proceeding.

In Belknap vs. Waters, 11 N. Y. 477, followed
in Marvin vs. Marvin, 78 N. Y. 541, the distinction
between an action and a special proceeding is held
to be that a proceeding instituted by summons and
complaint is an action, and that every other rem
edy is a special proceeding. The same distinction
was recognized in Matter of Jetter, 78 N. Y. 605.
An action terminates in a final judgment; a special
proceeding in a final order. Both actions and spe-
cial proceedings are distinguished from motions,
which may be incidental either to an action or to a
special proceeding. A motion “in general relates
to some incidental question collateral to the main
object of the action” or proceeding, (R. R. Co. vs.
Davis, 55 N. Y. 145). “ A motion is not a remedy
in the sense of the Code, but is based upon some
remedy, and is always connected with and depend-
ent upon the principal remedy. It is to furnish re-
lief in the progress of the action or proceeding in
which it is made, and generally relates to matters
of procedure, although it may be used to secure
some right in consequence of the determination of

115
THE COURT OF APPEALS.

the principal remedy.” (Matter of Jetter, 78 N.
Y. 605.)

§ 76. Distinction between final and interlocutory
judgments, and between final and intermedi-
ate orders,

The jurisdiction of the Court of Appeals in the
absence of a certificate of the Appellate Division,
is confined under the Constitution and the statute,
to the review of judgments finally determining ac-
tions, that is, to final as distinguished from inter-
locutory judgments, and to orders finally determin-
ing special proceedings. It includes also the pow-
er to review orders granting new trials on excep-
tions, where there is a stipulation for judgment ab-
solute, but it does not include, in the absence of a
certificate, the power to review any other inter-
mediate orders. The distinction between: final and
interlocutory judgments, and between orders deter-
mining special proceedings and orders determin-
ing motions, has been a fruitful source of litiga-
tion.

“An interlocutory judgment is an intermediate
or incomplete judgment where the rights of the
parties are settled but something remains to be
done; as when there is an accounting to be had, a
question of damage to be ascertained, or a reference
required to determine the amount of rent due for
use and occupation.” (Cambridge Valley Nat. Bk.
vs. Lynch, 76 N. Y. 514, 516.)

116
THE COURT OF APPEALS.

In Moulton vs. Cornish, 138 N. Y. 133, the
Court said:

“Where a judgment fully and completely dis-
poses of the substantial rights of the parties at is-
sue under the pleadings and by the force of its own
provisions may conclude the appeal without the
entry of a further judgment, it must be deemed a
final judgment within the purview of section 1907
of the Code, although in a certain contingency de-
pendent upon the action of the appellant it pro-
vides for the taking and stating of an account
before a referee and the payment of the amount
found due as a condition precedent to the enjoy-
ment of certain rights accorded him therein.”

Accordingly, in an action of foreclosure, where
the judgment decreed that unless the defendant
within a prescribed time gave the plaintiff notice of
his intention to redeem the lands purchased by
plaintiff at a former foreclosure sale, he should
be forever barred and foreclosed of and from all
right, title, interest and equity of redemption there-
in, and the lien of his mortgage thereon cut off
and foreclosed, and that the plaintiff should hold
the title thereto free from such lien. It was held
that the judgment was final and subject to review by
the Court of Appeals.

§ 77. Continued.

In Produce Bank vs. Morton, 67 N. Y. 199,
it was held that a judgment in an action to set
aside an assignment for the benefit of creditors,

117
THE COURT OF APPEALS.

adjudging the assignment void, directing the as-
signor to account before a referee, and that a re-
ceiver be appointed to take charge of the assigned
property, pay out of it the plaintiffs judgment and
hold the residue subject to the order of the court,
was a final judgment reviewable by appeal. “ The
machinery of a reference and receivership was for
the sole purpose of carrying the judgment into exe-
cution, and not for the foundation of any further
judicial action in the case.”

§ 78. Continued.

A judgment is not to be deemed interlocutory
unless it leaves something for the court judicially
to determine. It is not interlocutory when what
is left, is to be done by ministerial officers. For
that reason, the usual decree for sale in an action
to foreclose a mortgage, directing the premises
to be sold, and a judgment for any deficiency that
may arise to be docketed by the clerk, is, before
those proceedings are had, a final judgment within
the provisions of the Code as to appeals (Morris
vs. Morange, 38 N. Y. 172.)

On the other hand, a judgment sustaining a de-
murrer with leave to plead over (Johnson vs. Un-
ion Switch & Signal Co., 125 N. Y. 720; Elwell
vs. Johnson, 74 N. Y. 80), or a judgment directing
the partition of real property or the admeasure-
ment of dower, is an interlocutory judgment, and
not reviewable by the Court of Appeals upon a di-
rect appeal therefrom. So, a judgment which de-

118
THE COURT OF APPEALS.

crees that two of several defendants are jointly and
severally indebted to a decedent’s estate in a certain
sum, and that judgment be docketed therefor, ap-
points a receiver to collect such sum by suit or
otherwise, and to deposit and sell the same, subject
to the further order of the court, and provides that
all parties to the action interested in the estate may
apply for final judgment upon the report of the re-
ceiver, and upon further proof, as they may be ad-
vised, is an interlocutory judgment and therefore
not appealable as of right to the Court of Appeals.
(Anderson vs. Daley, 159 N. Y. 146.)
For other illustrations of interlocutory judg-

ments reference may be made to the following cases:

King vs. Barnes, 107 N. Y. 649.

Catlin vs. Grisler, 57 N. Y. 363.

McKeown vs. Officer, 127 N. Y. 687.

Cruger vs. Douglass, 2 N. Y. 571.

Harris vs. Clark, 4 How. Pr. 78.

Chittenden vs. Missionary Society, 8 How.

Pr. 327.
Clark vs. Brooks, 2 Abb. Pr. (N. S.) 385.

§ 79. How interlocutory judgments may be reviewed.

But while such a judgment may not on a direct
appeal therefrom be reviewed by the Court of Ap-
peals, it may be reviewed indirectly upon appeal
from the final judgment.

“Tf upon an appeal from an interlocutory judg-
ment to the general term [Appellate Division], the
judgment is affirmed, then the parties must go back

119
THE COURT OF APPEALS.

to the Special Term and complete the proceedings,
and then final judgment may be entered upon the
whole case. From the final judgment, the party
aggrieved thereby, may, under section 1336, ap-
peal directly to the Court of Appeals, in which case
his appeal will bring up for review only the deter-
mination of the General Term [Appellate Division ]
affirming the interlocutory judgment; or he may,
under section 1350, appeal to the General Term
[Appellate Division] which appeal will bring up
for review only the proceedings to take the final
judgment, and in case the General Term [Appellate
Division] affirms the judgment, he may appeal to
this court, and here present for review all the ques-
tions of law involved in the whole case, and raised
by exceptions taken at the proper time.” (Raynor
vs. Raynor, 94 N. Y. 248; Walker vs. Spencer, 86
N. Y. 162.)

It is necessary, however, whether the appeal to
the Court of Appeals be taken directly from the
final judgment of the Special Term under section
1336 or from the judgment of the Appellate Divi-
sion affirming the final judgment under section
1350, that the notice of appeal state the intention
to bring up for review the interlocutory judgment.
(Rich vs. Manhattan Ry. Co., 150 N. Y. 542.)

If this statement is omitted, the appeal will bring
up for review only the correctness of the proceed-
ings intermediate between the interlocutory and the
final judgment. (Rich vs. Manhattan Ry. Co., su-

pra.)
120
THE COURT OF APPEALS.
§ 80. Continued.

It is only where an interlocutory judgment has
been affirmed at the Appellate Division, that a party
has the right, after entering final judgment at Spe-
cial Term, to review the affirmance of an inter-
locutory judgment by direct appeal from the final
judgment of the Special Term to the Court of Ap-
peals. Where the interlocutory judgment has been
reversed at the Appellate Division, the case is ‘not
within the provisions of section 1336, which con-
template cases of affirmance only (Hollister vs.
Simonson, 170 N. Y. 358, 510). If the interloc-
utory judgment is reversed, the proper practice is to
enter a final judgment at Special Term, appeal
therefrom again to the Appellate Division, and from
the judgment of the Appellate Division to the Court
of Appeals with notice of intention to bring up for
review the decision on the appeal from the in-
terlocutory judgment. This seemingly is the prac-
tice as settled by the recent case of Abbey vs.
Wheeler, 170 N. Y. 122. It was there held that
where the Appellate Division reverses an interloc-
utory judgment of the Special Term overruling a
demurrer to the complaint and sustains such de-
murrer with leave to the plaintiff to amend within
a certain time, and with directions that if he fails
to amend final judgment shall be entered dismissing
the complaint, and thereafter, the plaintiff having
failed to amend, fmal judgment is entered by the
Special Term accordingly, the proper practice is to

121
THE COURT OF APPEALS.

appeal again to the Appellate Division and from
there to the Court of Appeals. The report of that
case is somewhat misleading. The opinion of
O’Brien, J., favors a different practice, which is sus-
tained in an extended argument. At the close of the
Opinion, it is stated, however, that on the question
of practice involved, the majority of the Court dif-
fer from the writer, and hold the proper practice
to be a second appeal to the Appellate Division, and
not a direct appeal to the Court of Appeals. If that
is the rule where the Appellate Division on the re-
versal of the interlocutory judgment directs that
final judgment be entered if the pleading is not
amended, a@ fortiori must the same rule prevail
where the Appellate Division reverses an interlocu-
tory judgment overruling a demurrer to the com-
plaint with leave to the plaintiff to amend, but does
not provide for the entry of final judgment in de-
fault of his amendment. A second appeal must
be taken from such final judgment to the Appellate
Division. (Leonard vs. Barnum, 168 N. Y. 41;
Barker vs. Cocks, 50 N. Y. 689.)

§ 81. Changes effected by the present constitution in
the court’s power to review interlocutory
judgments.

The practice in respect of these appeals has not

been greatly changed by the amended Constitution.

Even before the present Constitution was adopt-

ed, the Court of Appeals could not entertain an

appeal from an order affirming an interlocutory
122
THE COURT OF APPEALS.

judgment. (Raynor vs. Raynor, supra; Walker vs.
Spencer, supra; Victory vs. Blood, 93 N. Y. 650;
King vs. Barnes, 107 N. Y. 645; Tilton vs. Vail,
117 N. Y. 520; McKeown vs. Officer, 127 N. Y.
687; Adams vs. Fox, 27 N. Y. 640.)

There was an exception to this rule, however, in
the case of interlocutory judgments entered on de-
murrer, where the general term certified that in its
opinion a question arising therein was of suffieient
importance to render a decision by the Court of
Appeals desirable before proceeding farther. (John-
son vs. Union Switch & Signal Co., 125 N. Y.
720.)

But where on appeal from an interlocutory judg-
ment, the General Term reversed the judgment and
ordered a new trial, an appeal, it seems, formerly
lay to the Court of Appeals. (Raynor vs. Raynor, .
supra. )

A distinction was also recognized between appeals
and motions for a new trial. If the party ag-
grieved by the interlocutory judgment, instead of
appealing therefrom, moved under section 1001 at
the General Term for a new trial upon exceptions
contained in a case, an order of the General Term
granting or refusing the motion was appealable to
the Court of Appeals. (Raynor vs. Raynor, supra;
Walker vs. Spencer, supra; Kelsey vs. Sargent, 104
N. Y. 663; Wahl vs. Barnum, 116 N. Y. 87.

“ An order of General Term denying a motion
for a new trial, made as authorized by section 1001
of the Code of Civil Procedure, in a case where

123
THE COURT OF APPEALS.

an interlocutory judgment has been entered on de-
cision of the court, or report of a Referee, rendered
upon trial of an issue of fact, is reviewable here.
On such a motion, however, the General Term may
not review questions of fact, but simply those of
law; and only questions of law presented by the
exceptions, may be considered in this court.” (Wahl
vs. Barnum, supra.)

§ 82. Continued.

Under the present Constitution no appeai lies
from an order of the Appellate Division made up-
on an appeal from an interlocutory judgment,
whether the order is one of affirmance or reversal.
(Townsend vs. Van Buskirk, 162 N. Y. 265.) But
the distinction between appeals and motions for a
new trial is still preserved, for by the Constitution
and the statute the Court of Appeals may hear ap-
peals from orders granting new trials on exceptions
where there is a stipulation for judgment absolute.
Accordingly, if a motion for a new trial is made
after interlocutory judgment, upon exceptions, un-
der section 1001, an order granting a new trial
upon such exceptions, is still reviewable. (Town-
send vs. Van Buskirk, 162 N. Y. 265.)

But in such a case it must appear that the Ap-
pellate Division passed upon exceptions presented
by the motion, and the appeal to the Court of Ap-
peals must be from the order granting the motion
and sustaining the exceptions. If, therefore, an
appeal is taken to the Appellate Division from an

124
THE COURT OF APPEALS.

interlocutory judgment, and a motion is also made
for a new trial on exceptions, and the order of the
Appellate Division merely reverses the interlocu-
tory judgment and grants a new trial, without over-
ruling or sustaining the exceptions sought to be
presented by the motion under section 1001, no
appeal lies to the Court of Appeals. (Townsend
vs. Van Buskirk, 162 N. Y. 265.)

On the other hand, an order denying a motion
for a new trial made upon exceptions under section
1oo1 of the Code, intermediate between the inter-
locutory judgment and the final judgment, is not
appealable, under the existing statutes, to the Court
of Appeals. (Young vs. Gilmour, 167 N. Y. 500.)

§83. How intermediate orders necessarily affecting
the final relief may be reviewed.

We have said that interlocutory judgments may
be reviewed indirectly upon appeal from the final
judgment, and the same is true of intermediate or-
ders which necessarily affect the final judgment.
The court’s power of review in such cases is regu-
lated by sections 1316 and 1336 of the Code, and
has frequently been exercised since the amendment
of the Constitution. (N. Y. L. & W. Ry. Co. vs.
Erie R. R. Co., 170 N. Y. 448.)

These sections read as follows:

“ Sec. 1316: An appeal, taken from a final judg-
ment brings up for review, an interlocutory judg-
ment, or an intermediate order, which is specified
in the notice of appeal, and necessarily affects the

125
THE COURT OF APPEALS.

final judgment; and which has not already been
reviewed, upon a separate appeal therefrom, by the
court or the term of the court, to which the appeal
from the final judgment is taken. The right to re-
view an interlocutory judgment, or an intermediate
order, as prescribed in this section, is not affected
by the expiration of the time, within which a sep-
arate appeal therefrom might have been taken.

“ Sec. 1336: Where final judgment is rendered
in the court below, after the affirmance, upon an
appeal to the appellate division of the supreme
court, of an interlocutory judgment; or after the
refusal, by the appellate division, of a new trial,
either upon an application, made, in the first in-
stance, at a term thereof, or upon an appeal from
an order of the special term, or of the judge before
whom the issues, or questions of fact, were tried by
a jury; the party aggrieved may appeal directly
from the final judgment to the court of appeals,
notwithstanding that it was rendered at a special
term, or at a trial term, or pursuant to the direc-
tions contained in a referee’s report. But such an
appeal brings up, for review, only the determination
of the appellate division of the supreme court, af-
firming the interlocutory judgment, or refusing the
new trial.”

§ 84. Meaning of phrase “an intermediate order nec-
essarily affecting the final‘ judgment.”
What is an intermediate order necessarily affect-
ing the final judgment within the meaning of these
126
THE COURT OF APPEALS.

sections has been the subject of judicial construc-
tion. It was held in Fox vs. Matthiessen (155 N.
Y. 177), and again in Taylor vs. Smith (164 N. Y.
399), that the word “ intermediate ” in section 1316
of the Code of Civil Procedure means between the
two extremes of service of summons and entry of
judgment. An order denying a motion for a new
trial upon the ground of the misconduct of a juror,
made before judgment, although after the success-
ful party might have entered judgment, is, there-
fore, an intermediate order necessarily affecting
the judgment within the purview of this section.
It was so held in the cases above cited, though
apparently in earlier cases a contrary view was tak-
en. (See Selden vs. D. & H. Canal Co., 29 N. Y.
634; Thurber vs. Harlem &c. R. R. Co., 60 N. Y.
326.) In order, however, to warrant the appli-
cation of section 1316 of the Code, the order sought
to be reviewed must not only be intermediate, but it
must be one that necessarily affects the final judg-
ment. This includes, as we have just seen, an or-
der denying a motion for a new trial, though on
such an appeal the Court of Appeals would, of
course, be restricted to questions of law raised by
exceptions (Duryea vs. Vosburgh, 121 N. Y. 57),
so that nothing would be brought up for review that
could not already be considered upon appeal from
the judgment alone. Other intermediate orders
which necessarily affect the final judgment are or-
ders by which matter which is a good defense is
struck out from the defendant’s pleading (Rapa-

127
THE COURT OF APPEALS.

lee vs. Stewart, 27 N. Y. 310), and orders denying
a motion that a cause be sent back to a Referee for
further findings (Quincey vs. Young, 53 N. Y. 50).
In such cases, however, to warrant review by the
Court of Appeals, the intermediate order must ap-
pear by the record to have been passed upon at the
Appellate Division (Hunt vs. Chapman, 62 N. Y.
333). But an order granting a reference is not an
order necessarily affecting the final judgment, with-
in the meaning of this section (Roslyn Heights
Land Co. vs. Burrowes, 22 App. Div. 540; McCall
vs. Moschowitz, 1 N. Y. St. Rep. 99; Bloom vs.
Nat. &c. Savings Co., 81 Hun 120, 122; aff’d 152
N. Y. 114, 121). The Court has the same power
to review an intermediate order necessarily affecting
a final order in a special proceeding, as it has to
review an intermediate order necessarily affecting a
final judgment in an action (N. Y., L. & W. Ry.
Co. vs. Erie R. R. Co., 170 N. Y. 448).

§ 85. In cases of affirmance, appeal is from the judg-
ment and not from the order.

Since the court is restricted to the review of final
judgments (except where a new trial is ordered),
the appeal must be, not from the order of the Ap-
pellate Division directing that the judgment be
affirmed, but from the judgment of affirmance en-
tered thereon (Derleth vs. DeGraff, 104 N. Y. 661;
Kilmer vs. Bradley, 80 N. Y. 630; Knapp vs.
Roche, 82 N. Y. 366; D. L. & W. R. R. Co. vs.
Burkard, 109 N. Y. 648; Niendorff vs. Man. Ry.

128
THE COURT OF APPEALS.

Co., 150 N. Y. 276). An appeal from the order is
irregular (Kilmer vs. Bradley, supra). The order
is simply an authority for the judgment of affirm-
ance. For the same reason, an appeal cannot be
taken to the Court of Appeals from an order of
the Appellate Division dismissing an appeal from
the judgment below, but the proper practice is to
enter a judgment of dismissal upon the order and
then appeal from such judgment. Such an order
is not a final order in a special proceeding, nor an
order granting a new trial upon exceptions. It is
merely a decision; it is the authority or basis for
a judgment; and the appeal must be from the judg-
ment itself and not from the order which is but
evidence of the right to enter it. (Stevens vs. Cen-
tral Nat. Bk., 162 N. Y. 253.) So, where a ver-
dict is directed by the Trial Court, and exceptions
ordered to be heard in the first instance at the
Appellate Division, and a motion for a new trial is
there denied, and judgment ordered on the verdict,
the order of the Appellate Division is not appeal-
able to the Court of Appeals, but judgment should
be entered in pursuance of the order, and an appeal
taken therefrom (D. L. & W. R. R. Co. vs. Burk-
ard, 109 N. Y. 648).

§ 86. In cases of reversal, where a new trial is granted,
appeal is from the order.

But where a judgment is reversed and a new trial
ordered, the practice is different from that which
129
THE COURT OF APPEALS.

prevails where a judgment is affirmed, for, in the
case of a reversal and the grant of a new trial, the
appeal is to be taken from the order. ‘‘ Where a
judgment from which an appeal is taken is reversed
upon the appeal and a new trial is granted, an appeal
cannot be taken from the judgment of reversal;
but upon an appeal from the order granting a new
trial taken as prescribed by law, the judgment of
reversal must also be reviewed” (Code Civil Pro-
cedure, section 1318; Pharis vs. Gere, 112 N. Y.
408, 412). On the other hand, an order merely
reversing the judgment of the Special Term which
does not order a new trial, and upon which no judg-
ment is entered, is not appealable to the Court of
Appeals (Rust vs. Hauselt, 69 N. Y. 485). It is
not an order granting or refusing a new trial; nor
is it a final judgment.

§ 87. Extent of relief that may be granted by Court of
Appeals on appeal from final judgment or fi-
nal order.

When a final judgment, or a final order, or an
order granting a new trial on exceptions, is prop-
erly before the Court of Appeals, the extent of the
relief which may be granted by that Court is de-
fined by section 1337 of the Code: “In any ac-
tion on an appeal to the court of appeals, the
court may either modify or affirm the judgment or
order appealed from, award a new trial, or grant to
either party such judgment as such party may be
entitled to.” The provision that the Court may

130
THE COURT OF APPEALS.

grant to either party such judgment as such party
may be entitled to, has beeen held to mean such
judgment as a party may be entitled to upon the
facts found. (Farleigh vs. Cadman, 159 N. Y.
169). It was not intended thereby to confer upon
the Court of Appeals the power to pass upon con-
troverted facts. Like the Appellate Division, it
“sits as a Court of review, and in no sense as a
Trial Term” (Snyder vs. Seaman, 157 N. Y. 449,
453). To warrant the Court, therefore, in ren-
dering final judgment against the respondent on the
reversal of a judgment, it is not sufficient that it
is improbable that the defeated party can succeed
upon a new trial, but it must appear that he certain-
ly cannot. (New vs. Village New Rochelle, 158 N.
Y. 41; Howell vs. Hettrick, 160 N. Y. 308; Bene-
dict vs. Arnoux, 154 N. Y. 715; Heller vs. Cohen,
154 N. Y. 299; Snyder vs. Seaman, 151 N. Y. 449;
Ross vs. Caywood, 162 N. Y. 259; Shotwell vs. Dix-
on, 163 N. Y. 43; McNulty vs. Mt. Morris El. Light
Co., 172 N. Y. 410, 419.)

§ 88. Continued.

But where it is entirely plain from the pleadings
and the nature of the controversy that the plaintiff
cannot succeed, as where the action is one at law,
and the plaintiff must resort to another remedy, it
is proper on reversing a judgment for the plaintiff, —
to dismiss the complaint (Husted vs. Thomson, 158

_N. Y. 328). The same power was held to have
been properly exercised in Mansfield vs. Mayor of

131
THE COURT OF APPEALS.

N. Y., 165 N. Y. 208, and Hendrickson vs. City
of New York, 160 N. Y. 144. So, when the judg-
ment appealed from awards the plaintiff a gross
sum in a common law action, upon several distinct
causes of action, where the amount claimed on each
is definite and easily separable, and it appears that
the plaintiff was entitled to recover upon one cause
of action, but could, under no circumstances, re-
cover upon the others, the Court of Appeals can
render the judgment of modification and affirmance
which should have been rendered by the Appellate
Division (Freel vs. County of Queens, 154 N. Y.
661).
§ 89. Continued.

The power to grant judgment absolute upon
appeal from a final order in a special proceeding is
the same as the power to grant such relief on appeal
from a final judgment. Neither the Appellate Divi-
sion nor the Court of Appeals, by reason of the pro-
vision of the Code empowering those courts to grant
to either party the relief to which he may be entitled,
has jurisdiction to determine controverted facts.
There is no distinction in that regard between final
judgments and final orders. (Matter of Chapman,
162 N. Y. 456; Matter of Larner, 170 N. Y. 7.)

If the Appellate Division directs judgment abso-
lute on reversal where it should have ordered a new
trial, its decision is reviewable in so far as the un-
lawful direction is concerned, even though the re-
versal may have been based upon the facts (Good-

132
THE COURT OF APPEALS.

win vs. Conklin, 85 N. Y. 21; McNulty vs. Mt.
Morris El. Light Co., 172 N. Y. 410, 419).

Upon an appeal from a judgment which is entire
and against several defendants, the appellate court
must either totally affirm or reverse both as to the
recovery and as to all the parties; but in cases where
there are separate and distinct judgments or where
an error exists as to a separate claim or defense
which relates only to a transaction between the
plaintiff and one of the defendants, the judgment
may be reversed as to such a claim or defense and
only as to the parties interested therein, and af-
firmed as to the remainder. (Altman vs. Hofeller,
152 N. Y. 492; Board of Underwriters vs. Nation-
al Bank, 146 N. Y. 64; Goodsell vs. Western Union
Telegraph Co., 109 N. Y. 147.)

We have thus far considered the court’s power to
review a judgment finally determining an action.
We must now consider its power to review an or-
der finally determining a special proceeding.

§ 90. What is a final order in a special proceeding.

Much difficulty has been encountered in framing
a satisfactory definition of a final order in a special
proceeding. In People vs. American Loan & Trust
Co., 150 N. Y. 117, the Court, after quoting the
statutory definition of actions and special proceed-
ings, said:

“Thus it appears that remedies for the enforce-
ment of rights are divided into two classes, viz:
actions and special proceedings. Each has its pecu-

133
THE COURT OF APPEALS.

liar and distinguishing characteristics. Where an
action is an appropriate remedy, it does not include
a special proceeding unless by express provision of
law. A prosecution for the enforcement of a right
may be either by action or special proceeding. In
certain cases the prosecution may be by either, but
cannot be by both. To constitute a special proceed-
ing, the original prosecution must be commenced
thereby, and not commenced by action. When a
prosecution is begun by action, the subsequent pro-
ceedings therein must be regarded as in, and inci-
dental to, the action and not as independent and
original proceedings. * * *

“A final order which is appealable as such must
be an adjudication upon a motion or other appli-
cation, completely disposing of the subject matter
and rights of the parties and must be such as deter-
mines the action and prevents a judgment. (2 Enc.
of Pleading and Practice, 72).”

If, therefore, the application is merely incidental
or collateral to an action or a special proceeding
and the decision thereof does not completely dis-
pose of the action or special proceeding in the
course of which the application is made, it is to be
deemed a motion in the action or the proceeding;
and while a determination thereof may properly
be termed an order, it is not a final order.

The same test was prescribed in Van Arsdale vs.
King, 155 N. Y. 325. It was there said: “The
provision of the Code allowing appeals as of right
to the Court of Appeals from judgments or orders

134
THE COURT OF APPEALS.

finally determining actions or special proceedings
refers only to final judgments in actions and final
orders in special proceedings. It does not allow
an appeal to the Court of Appeals from an order
m an action, even although it is one which ends
the litigation, as, an order denying a motion to va-
cate, on the ground that jurisdiction of the person
had not been acquired, a judgment by default and
a precedent order granting leave to sue on an old
judgment. An action is determined within the
meaning of the Code only when issues of fact or
law, if any, have been tried and decided and the
final judgment entered which judicially settles the
controversy between the parties.”

§ 91. Enumeration of orders held to be final orders in
special proceedings.

Within the above definition, the following have
been held to be final orders appealable as of right to
the Court of Appeals: An order granting or de-
nying the application of a purchaser of real prop-
erty to be relieved of his bid or purchase. (Merges
vs. Ringler, 158 N. Y. 7or; Holme vs. Stewart, 155
N. Y. 695; Smith vs. Secor, 157 N. Y. 402; Kings-
land vs. Fuller, 157 N. Y. 507.) An order quash-
ing a writ of certiorari (where it appears by the
order that the writ was quashed upon grounds not
involving the exercise of discretion). (People ex
rel. Forest Commission vs. Campbell, 152 N. Y.
51.) An order granting an application by the at-
torney of record of the plaintiff in an action, to va-

135
THE COURT OF APPEALS.

cate a satisfaction of judgment executed by the
client and to enforce the judgment by execution to
the extent of his lien. (Peri vs. N. Y.C.& H.R.
R. R. Co., 152 N. Y. 521.) An order granting an
application by attorneys in a proceeding in the
Surrogate’s Court to vacate the satisfaction of a
decree rendered therein, on the ground that it was
collusively executed in disregard of their lien for
services. (Matter of Regan, 167 N. Y. 338.) An
order denying an application by an attorney
that the amount of his lien for services be
determined (Matter of King, 168 N. Y. 53).
An order determining a proceeding by man-
damus under section 114 of the election law
(Laws of 1896, Ch. 909), for the recount of
ballots objected to as marked for identification
or rejected as void, and presenting a question of
law for review. (People ex rel. Feeny vs. Board
of Canvassers, 156 N. Y. 36.) An order made by
a justice of the Supreme Court and affirmed by the
Appellate Division determining a summary investi-
gation into the financial affairs of a village instituted
by taxpayers and freeholders under the General
Municipal Law, L. 1892, Ch. 685, sec. 3 (Matter of
Taxpayers of Plattsburgh, 157 N. Y. 78.) An or-
der made in a proceeding for the voluntary dissolu-
tion of a corporation confirming the referee’s re-
port upon a receiver's accounts and the claims of
creditors, and directing distribution of the assets.
(Matter of Hulbert Bros. & Co., 160 N. Y. 9.)
An order affirming with modifications an order of
136
THE COURT OF APPEALS.

the Special Term confirming a referee’s report in a
proceeding under section 11 of the General Assign-
ment Act (Laws of 1877, chapter 466), for the
statement of an assignee’s account, allowing the
account, adjusting the claims of creditors and di-
recting payment thereupon, relieving the assignee
from liability for all matters included in his ac-
counts and releasing his surety to that extent; nor is
the order rendered interlocutory and deprived of its
finality by the fact that the proceeding was inter-
mediate in the sense that the assigned estate was
not then ready for final distribution. (Matter of
Talmage, 160 N. Y. 512.)

An order affirming an order of the Surrogate’s
Court settling an intermediate account of executors
and awarding commissions thereon, since the fact
that the account was an intermediate one in the
sense that the estate was not finally distributed
thereunder does not affect the final character of the
decree as a complete determination of the pending
proceeding. (Matter of Prentice, 160 N. Y. 568.)

An order affirming, as modified, an order settling
the account of a committee of a lunatic and remov-
ing him from his trust. (Matter of Chapman, 162
N. Y. 456.)

An order dismissing a petition that an adminis-
trator be required to account. (Matter of Killan,
172 N. Y. 547, 553-)

An order in a special proceeding instituted by a
property owner to review an assessment levied for
a local improvement which set aside the assessment

137
THE COURT OF APPEALS.

not only as to him but as to all the property own-
ers. (Matter of Munn, 165 N. Y. 149.)

An order or judgment entered on a decision of
the Appellate Division which not only reversed an
order or judgment of the Special Term condemning
water rights of the defendant in favor of the plain-
tiff, but dismissed the proceedings. (Village of
Champlain vs. McCrea, 165 N. Y. 264.) An order
reversing an order of the Special Term and dismiss-
ing an application made under section 24714, of the
Code of Civil Procedure to compel the delivery of
books and papers to a public officer. (Matter of
Brenner, 170 N. Y. 185; Matter of Allison vs.
Welde, 172 N. Y. 421.)

An order confirming a referee’s report and deter-
mining defendant’s damages by reason of a prelim-
inary injunction in a proceeding against the sure-
ties on the undertaking. (Newton vs. Russell, 87
N. Y. 527, 532.)

An order of a Surrogate’s Court fixing the fees
of appraisers of the estate of a testator. (Matter
of Harriott, 145 N. Y. 540.)

An order dismissing the proceeding, and granting
an allowance for counsel fees and disbursements
made in a statutory proceeding for the removal of
a police justice. (Matter of King, 130 N. Y. 602,
606. )

An order granting an application to remove a
trustee. (In re Livingston’s Petition, 34 N. Y.

555-)
138
THE COURT OF APPEALS.

An order adjudging a person guilty of criminal
contempt (People ex rel. Negus vs. Dwyer, 90 N.
Y. 402), where the order disobeyed was made in a
civil action, but not where it was made in a crim-
inal action (People vs. Gilmore, 88 N. Y. 627), nor
where the proceeding was for civil, and not for
criminal contempt (Jeweler’s Mercantile Agency
vs. Rothschild, 155 N. Y. 255; Ray vs. N. Y. Bay
Ex. R. R. Co., 155 N. Y. 102; Batterman vs. Finn,
40 N. Y. 340.) An order made in a summary pro-
ceeding for the removal of a tenant. (People ex
rel. Clute vs. Boardman, 4 Keyes 59.)

An order denying the right of an applicant for
admission to the bar. (Matter of Cooper, 22 N. Y.
67.)

An order granting a motion by a junior creditor
to set aside a judgment by confession. (Belknap
vs. Waters, 11 N. Y. 477.)

A Special Term order which modifies and amends
a final order in a special proceeding thereby becomes
the final order in that proceeding, and an order
of the Appellate Division reversing it is review-
able by the Court of Appeals. (Matter of Board of
Education, 169 N. Y. 456; Matter of Union Trust
Co., 172 N. Y. 494; Matter of Hurlbert Bros. & Co.,
160 N. Y. 9.)

139
THE COURT OF APPEALS.
§ 92. Enumeration of orders held not to be final.

The following have been held not to be final or-
ders in special proceedings:

An order directing a receiver of a corporation
in dissolution proceedings to pay a creditor’s claim
(People vs. American Loan & Trust Co., 150 N.
Y. 117); an order vacating an attachment on mo-
tion of a junior attaching creditor (Einstein vs.
Climax Cycle Co., 152 N. Y. 648; Townsend vs.
Chapin, 152 N. Y. 649); an order denying a mo-
tion by a receiver of the defendant’s property to
vacate an attachment and a judgment against the
defendant (Hammond vs. Nat. Life Ass’n, 168 N.
Y. 262); an order denying a motion by an assignee
of the defendant for restitution (Merriam vs. Wood
& Parker Lithographing Co., 155 N. Y. 136; New-
ell vs. Hall, 74 App. Div. 278; but see, Gillig vs.
Treadwell Co., 151 N. Y. 552); an order denying
a motion to vacate a judgment entered by default
(Van Arsdale vs. King, 155 N. Y. 325; Matter of
King vs. Gottlieb, 168 N. Y. 596; Campbell vs.
Rockwell, 168 N. Y. 632; Adams vs. Ellwood, 168
N. Y. 678; People vs. Russell, 171 N. Y. 655;
People vs. Clark, 168 N. Y. 676; People vs. Baker,
168 N. Y. 677); an order vacating an order for
the examination of witnesses granted ex parte by a
justice of the Supreme Court, under section 5 of the
act to prevent monopolies (Matter of Attorney
General, 155 N. Y. 441); an order reversing an
order which quashed a writ of certiorari to review

140
THE COURT OF APPEALS.

an assessment and at the same time remitted the
proceeding to the Special Term for its determination
on the merits (People ex rel. Bronx Gas & Elec. Co.
vs. Barker, 155 N. Y. 308); an order reversing an
order which vacated a final order and judgment
in condemnation proceedings (City of Johnstown vs.
Wade, 157 N. Y. 50); an order affirming an order
appointing commissioners to ascertain the damages
of a property owner by reason of a change of grade
of a village street (Matter of Grab, 157 N. Y. 69;
Matter of Stillwater Ry. Co., 170 N. Y. 573).

§ 93. Continued.

A proceeding to punish a party for contempt in-
stituted by an order to show cause to enforce the
judgment in an action, is a proceeding in the action,
and not a special proceeding, and therefore an order
made therein is not a final order determining a spe-
cial proceeding, and is not appealable as of right to
the Court of Appeals (Jeweler’s Mercantile Agency
vs. Rothschild, 155 N. Y. 255; Ray vs. N. Y. Bay
Ex. R. R. Co., 155 N. Y. 102; Batterman vs. Finn,
40 N. Y. 340; but see, Ludlow vs. Knox, 7 Abb. Pr.
(N. S.) 411). But a proceeding to punish for an
alleged criminal contempt, originating in the vio-
lation of an order granted in a civil action, is a
civil special proceeding, and an order therein find-
ing a party proceeded against guilty, is a final order
reviewable in the Court of Appeals (People ex rel.
Negus vs. Dwyer, 90 N. Y. 402). If, however,
the order violated was made by a criminal court in

141
THE COURT OF APPEALS.

a criminal proceeding pending before it, the con-
tempt proceeding is not a special proceeding as de-
fined in the Code of Civil Procedure (People ex
rel. vs. Gilmore, 88 N. Y. 626).

§94. Continued.

An order of a Surrogate’s Court, denying an ap-
plication to open a decree in a proceeding for the
judicial settlement of an executor’s accounts, and
to require a further accounting, is not a final order
(Matter of Small, 158 N. Y. 128; Matter of White,
170 N. Y. 575); nor an order reversing an order
vacating an execution against the person of the
judgment-debtor (S. S. Richmond Hill Co. vs. Sea-
ger, 160 N. Y. 312); nor an order reversing an
order denying defendant’s motion for a reassess-
ment of damages (Bossuet vs. R. R. Co., 131 N. Y.
57; Newin vs. Lehigh Valley R. R. Co., 169 N. Y.
336) ; nor an order of a Surrogate directing an ex-
ecutor to make and file an account (Matter of Cal-
lahan, 139 N. Y. 51); nor an order requiring an
executor to account and directing a reference to as-
certain his place of residence (Matter of Halsey,
93 N.-Y. 48); nor an order reversing an order
of the Special Term which confirmed a referee’s
report in surplus proceedings, and ordering a new
hearing before another referee (Mutual Life Ins.
Co. vs. Anthony, 105 N. Y. 57).

142
THE COURT OF APPEALS.
§95. Continued.

The following orders also have been held not to
be final: An order reversing an order which con-
firmed an award of commissioners appointed to
appraise lands taken by a railroad company, and
ordering a new appraisal before the same commis-
sioners (Matter of Southern Boulevard R. R. Co.,
128 N. Y. 93); an order made in an action to fore-
close a corporate mortgage, denying an application
to require a sequestration receiver to pay to the
foreclosure receiver a fund claimed to be covered
by the lien of the mortgage (N. Y. Security &
Trust Co. vs. Saratoga Gas & Electric Light Co.,
156 N. Y. 654) ; an order of reference to take proofs
touching an application by the Attorney General to
dissolve an insurance company (Matter Atty. Genl.
vs. Continental Life Ins. Co., 68 N. Y. 343); an
order reversing with costs a county judge’s order
denying an application to punish a party for con-
tempt, and remitting the matter involved to the
county judge to proceed (Crosby vs. Stephan, 97
N. Y. 606); an order vacating the report of com-
missioners appointed in proceedings by a railroad
corporation to acquire title to lands, and directing a
new appraisal before new commissioners (In re N.
W. W. S. & B. Ry. Co., 94 N. Y. 287; In re Auch-
muty, 88 N. Y. 622; In re Moore, 67 N. Y. 555);
an order reviving a special proceeding (Whittlesey
vs. Hoguet, 66 N. Y. 358); an order vacating an
ex parte order which discharged an assignee for the

143
THE COURT OF APPEALS.

benefit of creditors (Matter of Horsfalls, 77 N. Y.
514); an order of reference to take proof as to
charges made by creditors against an assignee for
the benefit of creditors (Matter of Friedman, 82 N.
Y. 609); an order denying a motion to vacate an
execution issued without leave after the lapse of five
years (Bank of Genesee vs. Spencer, 18 N. Y.
150); an order granting a motion to set aside an
order dismissing a complaint (Murphy vs. Walsh,
169 N. Y. 595).

An order of the Appellate Division made in cer-
tiorari proceedings imposing as a condition for the
reinstatement of the relator, a member of the po-
lice force, that he should stipulate not to claim back’
salary, but containing no provision as to the dis-
position of the proceeding if the stipulation was
not given, does not, in the absence of the stipu-
lation, determine the proceeding, and hence is not
appealable to the Court of Appeals (People ex rel.
Hart vs. York, 169 N. Y. 452).

In Roe vs. Boyle, 81 N. Y. 305, it was held that
a proceeding by reference under the statute to de-
termine and enforce a disputed claim against an
estate is not an action but a special proceeding; and
that an order granting a new trial in such proceed-
ings, since it is not a final order, is not appealable
to the Court of Appeals. But the statute has now
been so amended as to make this proceeding an ac-
tion in the Supreme Court (Code Civ. Pr., sec. 2718
as amended in 1893). The decision in Roe vs.
Boyle, supra, has thus been superseded.

144
THE COURT OF APPEALS.

§ 96. Jurisdiction extends to all final orders in special
proceedings, though the proceedings are the
creation of statutes passed after the adoption
of the constitution. But the jurisdiction is
subject to limitation by the legislature.

The right to hear appeals from final orders in
special proceedings carries with it the right to hear
appeals from all orders falling within that category,
though the proceeding be the creation of some stat-
ute enacted after the adoption of the Constitution
and of the sections of the Code defining the jurisdic-
tion of the court. The jurisdiction embraces all
cases of the prescribed class as they successively
arise. If, therefore, a statute is passed by which a
special proceeding terminating in a final order
is prescribed as the remedy for the enforcement of
some right which the statute creates, an appeal lies
to the Court of Appeals from the decision of the
Appellate Division affirming or reversing the order
without express provision in the statute therefor.
“The rule is that when any statute authorizes a
special proceeding like this mandamus under sec-
tion 114 of the election law, which terminates in
an order without in terms giving the right of appeal
to this Court, an appeal will nevertheless lie in all
such cases under the general provisions of the Code,
unless there are words found in the statute ex-
pressly restricting such right of appeal” (People
ex rel. Feeny vs. Board of Canvassers, 156 N. Y.
36, 48; In re Ryers, 72 N. Y. 1, 4; In re Brady, 69
N. Y. 215, 219, 220; Inre P,P. & C.I.R.R. Co,

145
THE COURT OF APPEALS.

85 N. Y. 497; Inre Swan, 97 N. Y. 492, 493; In re
DeCamp, 77 Hun 480). On the other hand, it is,
of course, within the legislature’s power to provide
that a final order in a special proceeding shall not
be reviewable in the Court of Appeals, and this
power it has on occasion exercised. For example,
where in proceedings under the law for the con-
demnation of realty, an award of commissioners is
reversed by the Appellate Division, and a new ap-
praisal is directed, and upon a second hearing a new
award is made, the second report is “ final and con-
clusive upon all parties interested,” and no appeal
lies to the Court of Appeals from an order of the
Appellate Division affirming an order of Special
Term, confirming the second report (Code Civ. Pr.,
sec. 3377.) (Matter of Southern Boulevard R. R.
C., 141 N. Y. 532; Matter of S. R. R. Co., 143 N.
Y. 253; Matter of S. B. R. Co., 146 N. Y. 352;
Matter of Trustees of N. Y. & Bklyn. Bridge, 137
N. Y. 95; Matter of Board of Street Opening, 133
id. 436; Matter of Met. El. R. R. Co., 128 id. 600;
Matter of Board of Street Opening, 111 id. 581;
Matter of PD. P.& C. I. R. R. Co., 83 id. 489; Mat-
ter of Kings Co. El. R. Co., 82 id. 95; Matter of
D. & H. C. Co., 69 id. 209; Matter of N. Y. C. & H.
R. R. Co., 64 id. 60; People vs. Betts, 55 N. Y. 600;
Matter of Commissioners of Central Park, 50 N. Y.
493; N. Y.C. & H. R. R. R. Co. vs. Marvin, 11
N. Y. 276.)

146
THE COURT OF APPEALS.

§ 97. Review of orders granting new trials on excep-
tions.

We have now to consider the third class of ap-
peals that may be heard by the Court of Appeals
as of right; i. e., appeals from orders granting new
trials on exceptions, where the appellants stipulate
for judgment absolute in the event of affirmance.

An order granting a new trial on exceptions,
within the meaning of the clause of the Constitu-
tion (Art. VI, sec. 9), which authorizes appeals, as
of right, to the Court of Appeals, from orders of
the Appellate Division of the Supreme Court,
“granting new trials on exceptions, where the ap-
pellants stipulate that upon affirmance judgment
absolute shall be rendered against them,” may be
founded on an exception filed, as provided by the
Code of Civil Procedure (sec. 1022) to a decision
which does not state separately the facts found (Ot-
ten vs. Man. Ry. Co., 150 N. Y. 400). The Court
there said:

“The decision of the Special Term was in ac-
cordance with that part of sec. 1022 of the Code
which authorizes the trial court to ‘ file a decision,
stating concisely the grounds upon which the is-
sues have been decided, and direct the judgment
to be entered thereon.’ After a decision of this
character, as the section further provides. ‘the de-
feated party may file an exception to such decision,
in which case, on an appeal from the judgment en-
tered thereon upon a case containing exceptions, the

147
THE COURT OF APPEALS.

Appellate Division of the Supreme Court shall re-
view all questions of fact and of law, and may
either modify or affirm the judgment or order ap-
pealed from, award a new trial, or grant to either
party the judgment which the facts warrant.’ If
the ‘exception’ thus authorized has the same
meaning as the word ‘exceptions,’ as used in the
Constitution, it must follow that a new trial granted
on exceptions, within the meaning of that instru-
ment, may be founded on an exception of this kind.
We see no reason for any difference in the meaning
of the same word, as thus used in the Constitution
and the Code. It appeared in section 1022 when
the Constitution was framed. Its function under
that section is the general function of an exception,
which is a protest against the decision of a court.
(Sterrett vs. Third Nat. B’k, 122 N. Y. 659, 662.)
It is not a substitute for a notice of appeal, which
instead of being dispensed with, is expressly re-
quired by the same sentence that authorizes the ex-
ception to be filed. Its office is apparently the same
as that of the exceptions mentioned in section 994
of the Code, which makes provision for excepting
to a decision of a court or referee where the facts
found are separately stated. It was by virtue of
this exception alone that the Appellate Division had
power to review either the facts or the law, and the
order of reversal, which could not have been made
if the exception had not been filed, is, as we think,
an order granted on an exception. (Baldwin’s
Bank of Penn Yan vs. Butler, 133 N. Y. 564.)”
148
THE COURT OF APPEALS.
§ 98. Continued.

The new trial must have been granted solely on
exceptions. Where a motion is made under section
999 of the Code for a new trial, not only upon ex-
ceptions, but also upon grounds appealing to the
court’s discretion, there can be no review of the
order in the Court of Appeals, unless it appears by
the order that the new trial was granted solely on
the exceptions and that as to the facts the order
denying the new trial was approved (See, ante, p.
33, and cases cited).

But where a motion for a new trial is made at the
Appellate Division under sec. 1001, upon exceptions
only, and upon a case settled as prescribed by sec.
997, an order sustaining the exceptions and grant-
ing a new trial may be reviewed. (Raynor vs. Ray-
nor, 94 N. Y. 248; Townsend vs. Van Buskirk, 162
Ne &- 265.)

This is so, although the motion was made after
interlocutory and before final judgment. (See,
ante, p. 124, and cases there cited.)

§ 99. Stipulations for judgment absolute.

If the notice of appeal does not contain the stipu-
lation assenting to judgment absolute in case of af-
firmance, it is fatally defective (Lane vs. Wheeler,
tor N. Y. 17); and the Appellate Division cannot,
by certifying questions, dispense with the necessity
for such a stipulation on an appeal from an order
granting a new trial (Mundt vs. Glokner, 160 N. Y.

149
THE COURT OF APPEALS.

571;N. Y.C.& H.R.R. R. Co. vs. State of N. Y.,
166 N. Y. 286). In Mundt vs. Glokner, the action
was brought for damages for personal injuries.
The complaint was dismissed at Trial Term and an
order was thereafter made by the Appellate Division
reversing the judgment and granting a new trial.
The defendant applied to the Appellate Division for
leave to appeal, and his application was granted by
that court. The order granting the application cer-
tified that a question of law was involved which
should be reviewed by the Court of Appeals, and
stated the question. Thereupon the defendant
claimed the right to a review of the decision of the
Appellate Division by the Court of Appeals without
the usual stipulation for judgment absolute. The
court held that under the Constitution (Art. VI,
sec. 9), it had no jurisdiction to review the appeal
from an order granting a new trial on exceptions
unless accompanied by the stipulation for judgment
absolute in case of affirmance, even though the Ap-
pellate Division had allowed the appeal and certified
a question of law for review. “ The provision of
the Constitution permitting the Appellate Division
to allow appeals was intended to apply to cases
where the appeal is not given as a matter of right,
and that court has no power to allow an appeal
given as matter of right upon certain conditions by
dispensing with the conditions.”

150
THE COURT OF APPEALS.
§ 100. Continued.

Since the stipulation for judgment absolute is
an indispensable condition of the right to appeal
from an order granting a new trial, there can be
no appeal from such an order where the stipula-
tion, if given, would be ineffective. For this rea-
son, the Court of Appeals has no jurisdiction to
review an order granting a new trial in an action in
the nature of a writ of quo warranto, brought by
the people, not only to oust the defendant from an
office, but also to establish the rights of the relator
thereto. An order granting a new trial can be re-
viewed only when a stipulation for judgment abso-
lute is given; and that requirement contemplates
cases where final judgment, disposing of the entire
controversy, could be rendered by the court under
the appellant’s stipulation in the event of an af-
firmance. The defendant cannot by his stipulation
give a relator who has no verdict in his favor a
right to the office. The public is interested in the
question litigated; and the court, therefore, cannot
render the final judgment which the statute contem-
plates. (People ex rel. Judson vs. Thacher, 55 N.

¥, 525» 537.)
§ 101. Continued.

It was held, however, in Beman vs. Todd, 124
N. Y. 114, that a stipulation for judgment absolute
is sometimes unnecessary. In that case, an appeal
was taken from a provision in an order of the Gen-

151
THE COURT OF APPEALS.

eral Term granting a new trial which the court had
no authority to make. The Court of Appeals held
that a stipulation that in case of affirmance judg-
ment absolute should be rendered against the appel-
lant, need not be given, but that the appeal should
be, not from the part of the order granting a new
trial which the General Term had power to grant,
but from the provision inserted in the order without
authority. It would seem, however, that this deci-
sion is no longer controlling since the adoption of
the amended Constitution with the restrictions
thereby imposed on the jurisdiction of the court.

§ 102. Effect of stipulation.

By the stipulation for judgment absolute in case
of affirmance, the appellant assumes the risk of
every exception appearing upon the record, and the
respondent may sustain the order granting the new
trial by showing any legal error upon the part of
the trial court, whether it was noticed at the Ap-
pellate Division or not. (Foster vs. Bookwalter,
152 N. Y. 166; Durland vs. Durland, 153 id. 67;
Read vs. McConnell, 133 id. 425; Rose vs. Hawley,
133 id. 315; Roberts vs. Baumgarten, 126 id. 336;
Noyes vs. Wyckoff, 114 id. 204; Mackay vs. Lewis,
73 id. 382.)

Where an order of the Appellate Division, re-
versing a judgment and granting a new trial, is
affirmed on appeal to the Court of Appeals, the
stipulation given on appeal compels an award of

152
THE COURT OF APPEALS.

judgment absolute against the appellant, although
it appears he was entitled to part of the relief
granted by the judgment. It is only where the
error which might have justified a reversal of the
judgment was merely incidental and capable of ac-
curate correction, and so the judgment should have
been corrected below without the award of a new
trial, that the Court of Appeals may modify the
judgment by correcting the error. (Conklin vs.
Snider, 104 N. Y. 641, 643; Gray vs. Board of Su-
pervisors, 93 N. Y. 603, 608; Godfrey vs. Moser,
66 N. Y. 250, 254; N. Y. State Monitor Milk Pan
Co. vs. Remington, 109 N. Y. 143.) In the first
of the cases cited, the Court said:

“We have once or twice, in cases where the error
which might have justified a reversal was merely
incidental and capable of accurate correction, modi-
fied the judgment by correcting the error, but those
were instances in which we thought a new trial
ought not to have been awarded (Wright vs. Nos-
trand, 98 N. Y. 669), since there could be no re-
covery for what had been erroneously allowed. Here
such a recovery was possible, and the award of a new
trial was a proper order for the General Term to
make, and we must affirm it and order judgment ab-
solute, although we can see that plaintiffs might
have been entitled to a part of their relief. (Gray
vs. Bd. of Supervisors, 93 N. Y. 603, 608; Thomas
vs. N. Y. Life Ins. Co., 99 id. 250; Godfrey vs.
Moser, 66 id. 250.) They chose to take the peril of
their stipulation.”

153
THE COURT OF APPEALS.

But where on appeal from a judgment in an ac-
tion upon several distinct causes of action, it ap-
pears that plaintiff is entitled to recover upon one
cause of action, but under no circumstances could he
recover upon the others, and the amount claimed on
each is definite and easily separable, the Court of
Appeals on appeal by the plaintiff with a stipulation
for judgment absolute, may render the judgment of
modification and affirmance which should have been
rendered by the Appellate Division, instead of or-
dering judgment absolute on the stipulation. (Freel
vs. County of Queens, 154 N. Y. 661.)

§ 103. Continued.

The court below, moreover, may still retain some
discretion as to the form and scope of the judg-
ment. Thus, where an action was brought to com-
pel the removal of a nuisance, or for money relief,
and judgment absolute was ordered in favor of the
plaintiff, it was held that the character of the judg-
ment was not thereby determined. The Supreme
Court in its discretion might direct the removal of
the nuisance, or award compensation in money dam-
ages. (Bates vs. Holbrook, 171 N. Y. 688; Code
Civil Procedure, sec. 194.)

The judgment rendered pursuant to the stipula-
tion must be absolute, however, against the appel-
lant upon the whole matter and right in controver-
sy in the action; and hence if an order, reversing
a judgment in favor of plaintiff and granting a new

154
THE COURT OF APPEALS.

trial, is affirmed, and judgment absolute ordered,
in an action wherein the answer sets up a counter-
claim valid on its face, defendant is entitled to judg-
ment on the counterclaim. (Hiscock vs. Harris, 80
N. Y. 402.)

But where an action is brought by the People,
and the defendant attempts to enforce a counter-
claim, a stipulation for judgment absolute given
by the Attorney General in behalf of the People,
is not an assent.to an affirmative judgment on the
counterclaim. The stipulation waives no legal ob-
jection to the counterclaim and no immunity of
the State from an affirmative judgment against
it. It authorizes such a judgment only as the
court has power to pronounce. (People vs. Den-
nison, 84 N. Y. 272, 283.)

§ 104. When appeal may be withdrawn after stipula-
tion for judgment absolute has been given.

The Court cannot relieve a party against his stip-
ulation for judgment absolute; but when he has
appealed under a mistake, and, before a decision
of the appeal by the court, asks permission to with-
draw it, the court, if satisfied that the proceeding
has been in good faith, will ordinarily give leave
to withdraw it on payment of costs. (Mackay
vs. Lewis, 73 N. Y. 382.)

Where, however upon the argument, the appel-
lant’s counsel was reminded of the danger to which
the appellant was exposed, by reason of his stipu-
lation for judgment absolute, and opportunity giv-

155
THE COURT OF APPEALS.

en him to withdraw his appeal, which he declined,
and proceeded to argument, it was held that such
appellant after a decision against him, would not
be permitted to withdraw his stipulation and take
a new trial. (Williams vs. Lindblom, 143 N. Y.

675.)

§ 105. Exceptions to the court’s jurisdiction to review
final judgments, final orders, and orders
granting new trials on exceptions.

The general jurisdiction conferred upon the
Court of Appeals to review final judgment, and
final orders, and orders granting new trials on
exceptions where the appellants stipulate that, upon
affrmance, judgment absolute shall be rendered
against them, is subject, as we have already seen,
to statutory exceptions. These exceptions must
now be considered.

§ 106. Appeals from inferior courts.

(1) In the first place, no appeal may be taken
to the court in any civil action or proceeding com-
menced in any court other than the Supreme Court,
Court of Claims, County Court or a Surrogate’s
Court, unless the Appellate Division of the Supreme
Court allows the appeal by an order made at the
term which rendered the determination or at the
next term after judgment is entered thereupon,
and shall certify, that in its opinion, a question of
law is involved which ought to be reviewed by

156
THE COURT OF APPEALS.

the Court of Appeals. (Code Civ. Pr., sec. 191,
subd. 1.) The court has held that this provision
applies to an action originally commenced in a
justice’s court, discontinued there on the interposi-
tion of an answer of title, and thereupon prosecut-
ed in the Supreme Court. (Sidwell vs. Greig, 157
N. Y. 30.)

It was not intended to apply, however, to actions
commenced in the Superior City Courts,— the Su-
perior Court of the City of New York, the Court
of Common Pleas for the City and County of New
York, the City Court of Brooklyn, and the Superior
Court of Buffalo — which ceased to exist by virtue
of the new Constitution. The provision was in-
tended to be restricted to the courts, other than
the Supreme Court, which existed after it took
effect. (Halliburton vs. Clapp, 149 N. Y. 183.)

§ 107. Appeals in actions for personal injuries.

(2) In the second place, no appeal may be taken
to said court “‘ from a judgment of affirmance here-
after rendered in an action to recover damages for
a personal injury, or to recover damages for in-
juries resulting in death, * * * when the de-
cision of the appellate division of the supreme
court is unanimous unless such appellate division
shall certify that in its opinion a question of law
is involved which ought to be reviewed by the court
of appeals, or unless, in case of its refusal to so
certify, an appeal is allowed by a judge of the
court of appeals.” (Code Civ. Pr., sec. 191, subd.

1357
THE COURT OF APPEALS.

2, as amended by L. 1896, c. 559.) Jurisdiction
over this class of appeals was withdrawn from the
court by chapter 559 of the Laws of 1896, amend-
ing section 191 of the Code of Civil Procedure, and
the court has held that the act is constitutional,
(Croveno vs. Atlantic R. R. Co., 150 N. Y. 225)
and has enforced it in many cases.

Since a decision of the Appellate Division is not
a judgment and since the statute denies to the Court
of Appeals the power to hear appeals from judg-
ments of affirmance in this class of cases, the fact
that the decision was made prior to the passage of
the statute if the judgment was entered afterwards,
does not confer jurisdiction. (Niendorff vs. Man-
hattan Railway Co., 150 N. Y. 276.)

The statute, in the absence of proof to the con-
trary, is presumed to have taken effect at the com-
mencement of the day on which it was approved,
and hence it applies to and cuts off the right to
appeal from a judgment entered on the day the
act was approved. (Croveno vs. Atlantic R. R.
Co., 150 N. Y. 225.)

But in order to defeat the jurisdiction of the
court in actions of this class it must appear by the
judgment or by the certificate of the court below
appearing in the record, and not merely by the
opinion, that the decision was unanimous. ‘(Kaplan
vs. N. Y. Biscuit Co., 151 N. Y. 171; Laidlaw vs.
Sage, 158 N. Y. 73.)

A judgment entered upon an order of the Ap-
pellate Division overruling exceptions directed to

158
THE COURT OF APPEALS.

be heard by it in the first instance, denying the mo-
tion for a new trial made thereon, and ordering
judgment on the verdict, is, however, a judgment
of affirmance within the meaning of this section
of the Code, and if unanimous, may not be reviewed
in the absence of an allowance of the appeal. (Huda
vs. American Glucose Co., 151 N. Y. 549.)

§ 108. Principles governing allowance of appeal.

The principles which should govern the allowance
of appeals, not only in actions for personal in-
juries, but also in all other cases where an appeal
does not lie of right, were announced in Sciolina
vs. Erie Preserving Co., 151 N. Y. 50. Speaking
by Andrews, C. J., the Court said:

“ Having in view the purpose of the amendment
and the policy which may be presumed to have
dictated it, I am of opinion that the right reserved
to apply to the court or a judge to allow an ap-
peal, was intended primarily to provide for excep-
tional cases where public interests or the interest of
jurisprudence might be endangered by permitting
a decision to go unchallenged, and that the ques-
tions to be considered by the court or judge to whom
the application is made, are, first, whether, in his or
its judgment there is reason to believe that some
material error is disclosed by the record; and, sec-
ond, if so, whether it is of sufficient importance to
require the general principle of finality appertain-
ing to the decisions of the Appellate Division to be
disregarded in the particular case by the allowance

159
THE COURT OF APPEALS.

of another appeal. In my judgment the mere ex-
istence of errors in rulings on the trial, to the preju-
dice of the appellant, does not alone warrant the
granting of a certificate. Where the questions have
a public aspect, then different considerations apply.
I can very well understand that where the sup-
posed error relates to a question of constitutional
law, or the construction of a statute, or where the
point is one upon which there is a conflict of deci-
sions between different Appellate Divisions, or
where it relates to a principle of law or a question
of evidence, which, if permitted to pass uncorrected,
will be likely to introduce confusion into the body of
the law from the frequent recurrence of occasions
where the same questions will come up, that in these
and, perhaps similar cases the public interests and
the interests of jurisprudence would justify, and,
perhaps, require the granting of a certificate. But
without undertaking to anticipate all the cases where
this power should be exercised, I deny the present
applications, on the ground that, assuming that er-
rors may have been committed in the respects point-
ed out on the briefs, they are not such as, in my
opinion, ‘ought to be reviewed’ by the Court of
Appeals, because they affect at most only the par-
ties to the respective litigations, and do not fall
within the general classes above stated, and that the
mere fact that the Appellate Division may have
erred (which I do not decide) is not alone a suffi-
cient reason for taking from these courts their

160
THE COURT OF APPEALS.

general character as final appellate jurisdictions in
the cases specified in the amendment in question.”

§ 109. How appeal should be allowed, and effect of its
allowance.

If, however, an appeal is allowed in an action
for personal injuries, a certificate of the Appellate
Division stating generally that in its opinion a ques-
tion of law is involved which ought to be reviewed
by the Court of Appeals is sufficient without speci-
fying the questions for review. (Young vs. Fox,
155 N. Y. 615; Commercial Bank vs. Sherwood,
162 N. Y. 310.)

The effect of an allowance of the appeal is to
open the whole case for review and if specific ques-
tions are certified, they must be treated as sur-
plusage, and are unavailing to limit the jurisdiction
of the court. It is only under subdivision 2 of
section 190, that is, where the appeal is from an
intermediate order or an interlocutory judgment,
that the certification of specific questions of law for
review is required. (Young vs. Fox, supra; Com-
mercial Bank vs. Sherwood, supra.)

The allowance of an appeal by the Appellate Divi-
sion in an action for personal injuries does not,
however, empower the Court of Appeals to review
the question of the sufficiency of the evidence to
sustain a verdict not directed by the court and unan-
imously affirmed by the Appellate Division. The
only effect of the allowance of the appeal is to re-
move the restriction upon the court’s right to hear
the appeal at all. That restriction being removed,

161
THE COURT OF APPEALS.

the court may consider those questions of law and
those only which it could have considered if the
restriction had never been imposed. In other
words, its jurisdiction is no greater than that which
it has upon appeal from final judgments in other
classes of actions. The legal questions open to re-
view upon appeal from final judgments, whether
the action be one for personal injuries or not, do
not include the correctness of a unanimous decision
of the Appellate Division that there is evidence
supporting or tending to sustain a verdict not di-
rected by the court. (Reed vs. McCord, 160 N. Y.
330; Kleiner vs. Third Av. R. R. Co., 162 N. Y.
193; Commercial Bank vs. Sherwood, 162 N. Y.
317; Young vs. Fox, 155 N. Y. 615.

And it is not in the power of the Appellate Divi-
sion by any certificate that it may make to confer
jurisdiction upon the Court of Appeals to review
that question. (Matter of Westerfield, 163 N. Y.
209. )

§ 110. Appeals in actions to set aside fraudulent con-
veyances.

(3) In the third place, no appeal may be taken to
the court “ from a judgment of affirmance hereafter
rendered in an action to set aside a judgment, sale,
transfer, assignment or written instrument, as in
fraud of the right of creditors * * * when the
decision of the appellate division of the supreme
court is unanimous, unless such appellate division
shall certify that in its opinion a question of law

162
THE COURT OF APPEALS.

is involved which ought to be reviewed by the
court of appeals or unless, in case of its refusal
to so certify, an appeal is allowed by a judge of the
court of appeals.” (Code Civ. Pr., sec. 191, subd.
2, as amended by L. 1898, c. 574.)

$111. Effect of the allowance of an appeal.

When an appeal is allowed under this provision,
the jurisdiction of the court is still subject to the
rule that, in cases of unanimous affirmance, the de-
cision of the Appellate Division that there is evi-
dence supporting or tending to sustain a verdict
not directed by the court shall not be open to re-
view. “The permission to appeal under subdivi-
sion 2 of section I91 in no way enlarges the juris-
diction of the court with respect to the questions
that may be reviewed by it upon a hearing of the
appeal.” (Commercial Bank vs. Sherwood, supra.)

§ 112. Appeals in actions for wages, etc.

(4) In the fourth place, no appeal may be taken
to said court “ from a judgment of affirmance here-
after rendered * * * in an action to recover
wages, salary or compensation for services, includ-
ing expenses incidental thereto, or damages for
breach of any contract therefor, * * * when
the decision of the appellate division is unanimous,
unless such appellate division shall certify that in
its opinion a question of law is involved which ought
to be reviewed by the court of appeals, or unless
in case of its refusal to so certify, an appeal is

163
THE COURT OF APPEALS.

allowed by a judge of the court of appeals.”
(Code Civil Pr., sec. 191, subd. 2, as amended
by L. 1898, c. 514.) It has been held that an ac-
tion by an attorney to recover compensation for
professional services is an action to recover com-
pensation for services within the meaning of this
section. (Boyd vs. Gorman, 157 N. Y. 365.)

An action for materials furnished and services
rendered pursuant to a written agreement in the
decoration and painting of a large hotel'is not an
action for wages or services within the meaning
of this section. (Blady vs. Rothschild, 170 N. Y.
574-)

The Appellate Division for the second depart-
ment held in Donnelly vs. City of N. Y., 54 App.
Div. 155, that leave to appeal to the Court of Ap-
peals is unnecessary where an action is brought by
a public officer to recover compensation fixed by
statute. It was thought that the statute referred
only to cases where the claim for wages, salary or
compensation, arose out of a contract relation, and
not to a case where the compensation was deter-
mined by statute as an incident to a public office.

§ 113. Appeals in actions on an individual bond or
undertaking.

(5) In the fifth place, no appeal may be taken to
said court “from a judgment of affirmance here-
after rendered * * * in an action upon an in-
dividual bond or individual undertaking on ap-

164
THE COURT OF APPEALS.

peal when the decision of the appellate division
of the supreme court is unanimous, unless
such appellate division shall certify that in
its opinion a question of law is involved
which ought to be reviewed by the court of appeals,
or unless in case of its refusal to so certify, an ap-
peal is allowed by a judge of the court of appeals.”
(Code Civil Pr., sec. 191, subd. 2, as amended by
L. 1900, c. 592.) This section has not been ju-
dicially construed. Its meaning is not clear. Prob-
ably by the word individual, the purpose was to
exclude official bonds or undertakings.

§ 114. Appeals from intermediate orders.

We have now considered the orders and judg-
ments which the Court of Appeals may, as of right,
review. They embrace, with the exceptions stat-
ed in subdivisions 1 and 2 of section 191 of the
Code, all final judgments, and final orders, and
orders granting new trials on exceptions where the
prescribed stipulation for judgment absolute is giv-
en. The Constitution, however, provides (Article
VI, section 9) that the Appellate Division in any de-
partment may allow an appeal upon any question of
law, which in its opinion, ought to be reviewed by
the Court of Appeals; and the legislature has pre-
scribed the procedure by which the right may be al-
lowed. By section 190, subdivision 2, it is provid-
ed: “ Appeals may also be taken from determina-
tions of the appellate division of the supreme

165
THE COURT OF APPEALS.

court in any department, where the appellate divi-
sion allows the same and certifies that one or more
questions of law have arisen, which, in its opinion,
ought to be reviewed by the court of appeals, in
which case the appeal brings up for review the
question or questions so certified and no others; and
the court of appeals shall certify to the appellate
division its determination upon such questions.”

§115. Effect of statute allowing appeals from inter-
mediate orders under certain conditions.

The result of this section is to enlarge in some
respects and to restrict in others the jurisdiction
over intermediate orders and interlocutory judg-
ments possessed by the Court of Appeals before
the amendment of the Constitution. The restric-
tion, however, is more important than the enlarge-
ment. Before the amendment of the Constitution,
an appeal lay to the Court of Appeals as of right
from almost all intermediate orders made in an ac-
tion which affected a substantial right and did not
rest in discretion. Such orders are now made re-
viewable by the Court of Appeals only when an ap-
peal is allowed by the Appellate Division. On the
other hand, before the present Constitution was
adopted, there was no appeal to the Court of Ap-
peals either as of right or otherwise from an inter-
mediate order in a special proceeding. The court’s
jurisdiction over special proceedings was confined
to the review of final orders. (Matter of Southern

166
THE COURT OF APPEALS.

Boulevard R. R. Co., 128 N. Y. 93, 97; Mutual
Life Insurance Co. vs. Anthony, 105 N. Y. 57),
and that jurisdiction could not be enlarged by the
allowance of an appeal. Under the present Con-
stitution, however, intermediate orders in special
proceedings as well as intermediate orders in ac-
tions may be reviewed when an appeal is allowed.
So, before the adoption of the present Constitution,
no appeal lay to the court from an affirmance of an
interlocutory judgment except in the case of an in-
terlocutory judgment sustaining or overruling a
demurrer, in which case an appeal was permitted,
if the General Term allowed it; but in all other
cases of interlocutory judgments, the allowance of
the appeal by the General Term was unavailing to
enlarge the jurisdiction of the court. Under the
present Constitution, however, a question of law
arising upon an interlocutory judgment is review-
able by the Court of Appeals, whenever the Appel-
late Division allows the appeal.

§ 116. When appeal must be allowed.

Since the right of appeal from intermediate or-
ders and interlocutory judgments does not exist
until the Appellate Division has made the proper
order allowing it, the sixty days within which such
appeal may be taken, under section 1325 of the
Code of Civil Procedure, do not begin to run until
such order is granted. (Porter vs. International
Bridge Co., 163 N. Y. 79.)

167
THE COURT OF APPEALS.

The Court has held, however, that application
for such leave to appeal must be made at the Term
of the Appellate Division at which the order or
judgment appealed from was granted, or before the
end of the next succeeding term, and if the order
allowing the appeal is not obtained within that
time, none can be subsequently granted. (Porter
vs. International Bridge Co., supra; Steamship
Richmond Hill Co. vs. Seager, 160 N. Y. 312;
Guarantee Trust & Safe Deposit Co. vs. Phila.,
Reading & New England R. R. Co., 160 N. Y. 1;
Lane vs. Wheeler, tor N. Y. 17.)

Where an appeal from an order not appealable
as of right has been taken to the Court of Appeals
without prior permission, the Appellate Division
has no authority to grant a retroactive allowance
of the appeal, nunc pro tunc. (Guarantee Trust &
Safe Dep. Co. vs. Phila., Reading & New England
R. R. Co., supra; S. S. Richmond Hill Co. vs. Sea-
ger, supra.)

§ 117. Manner in which appeal from intermeciate
orders should be allowed. Form of certificate.

Where appeals are allowed from intermediate or-
ders or interlocutory judgments, that is, from or-
ders or judgments which in their general nature,
are not reviewable as of right by the Court of Ap-
peals, specific questions must be certified by the
court for review. The practice on such appeals

168
THE COURT OF APPEALS.

differs from the practice where an appeal is al-
lowed under subdivision 2 of section 191, in actions
for personal injuries, or to set aside a transfer for
fraud, or in an action for wages or compensation
for services, where the judgment has been unani-
mously affirmed. In such actions as we have al-
ready seen (Young vs. Fox, 155 N. Y. 615; Com-
mercial Bank vs. Sherwood, 162 N. Y. 310), it is
enough that the Appellate Division should certify
generally that questions of law are involved which
ought to be reviewed by the Court of Appeals, and
the appeal, when allowed, brings up for review,
every question of law presented by the record. On
the other hand, the allowance of an appeal from
an interlocutory judgment or an intermediate order
under subdivision 2 of section 190, brings up for
review the question or questions certified, and no
other. (Code Civil Procedure, sec. 190, subd. 2;
Davis vs. Cornue, 151 N. Y. 172; Grannan vs.
Westchester Racing Ass’n, 153 N. Y. 449.)

But while on such an appeal the Court is confined
to the question certified, it is its duty to ascertain
all the facts that raise that question so that it can
be decided as an existing issue between the parties
and the danger of passing upon merely abstract
propositions avoided. If, therefore, the question
certified is whether facts stated in an answer are
sufficient in law to constitute a defense, this in-
cludes the question whether the complaint itself is
sufficient, since it is the settled rule that on demur-

169
THE COURT OF APPEALS.

rer to an answer, defendant may attack the com-
plaint. (Baxter vs. McDonnell, 154 N. Y. 432.)

§118. Form of certificate continued.

The statute does not prescribe the form in which
questions shall be certified to the court, but the
court, by its decisions has prescribed rules upon
that subject.1. Each question certified should be
separately stated so that it can be answered yes or
no, and several propositions should not be com-
bined in a compound question alternative in form
which can not be categorically answered. (Devlin
vs. Hinman, 161 N. Y. 155; Grannan vs. Westches-
ter Racing Ass’n, 153 N. Y. 449.)

The questions should be so framed that the an-
swers may determine the particular controversy in-
volved in the appeal and not merely part of it.
Where the decision below may stand upon several
grounds, it is not enough that the questions certi-
fied present only the weak propositions involved in
the particular ground claimed to be affected with
error, ignoring all the other grounds upon which
the decision may well stand. (Blaschko vs. Wur-
ster, 156 N. Y. 437; Malone vs. Sts. Peter’s &
Paul’s Church, 172 N. Y. 269, 279.)

When a question certified presents merely an

1 But the appeal when allowed is from the intermediate order
or interlocutory judgment, and not from the question certified.
(Bank of Metropolis vs. Faber, 150 N. Y. 200.)

170
THE COURT OF APPEALS.

abstract proposition and no facts are disclosed in
the record which show that it arose in the case, the
Court of Appeals will decline to answer it. (Hearst
vs. Shea, 156 N. Y. 169; Matter of Davies, 168 N.
Y. 89; Steinway vs. Von Bernuth, 167 N. Y. 498;
Matter of Robinson, 160 N. Y. 448.)

The questions certified can be reviewed only so
far as they actually arose and where determined
by the Appellate Division. (Schenck vs. Barnes,
156 N. Y. 316.)

The Court has no jurisdiction to review a certi-
fied question which was not passed upon by the
Appellate Division. (Coatsworth vs. Lehigh Val-
ley R. R. Co., 156 N. Y. 541. And if questions cer-
tified by the Appellate Division were not properly
before the original tribunal, the Court of Appeals
will decline to answer them. (Matter of Coats-
worth, 160 N. Y. 114.)

In that case the order reviewed was an order of
the Appellate Division reversing an order of the
county judge awarding to the petitioners a warrant
in summary proceedings. The lease contained a
covenant for the payment to the tenant of the value
of his improvements. The county judge held, and
the Court of Appeals sustained his ruling, that pay~
ment was not a condition precedent to the right of
the petitioners to recover possession. The Appel-
late Division undertook to determine the question
as to the tenant’s right to payment for the build-
ings. The Court of Appeals held that no such
question was properly before the courts below in

171
THE COURT OF APPEALS.

that proceeding and declined to answer the question
as certified to it.

§ 119. Only questions of law may be certified.

The power of the Appellate Division to certify
questions for review upon appeals from intermedi-
ate orders or interlocutory judgments is limited,
however, to the power to certify questions of law.
It is so limited, not only by the statute, but also by
the general command of the Constitution which is
applicable to all appeals, that the jurisdiction of
the Court of Appeals, except where the judgment
is of death, shall be limited to questions of law.
No certificate of the Appellate Division can clothe
the Court of Appeals with jurisdiction to review
a question of fact or a question resting in discre-
tion. (Matter of Westerfield, 163 N. Y. 209; Nere-
sheimer vs. Smythe, 167 N. Y. 202, 206, 207.)

Where, therefore, after reversing a Surrogate’s
decree and passing the accounts of trustees upon
questions of facts as well as of law, the Appellate
Division certifies to the Court of Appeals certain
questions whose answers depend upon the facts es-
tablished by the evidence from which different in-
ferences may be drawn, the Court of Appeals can-
not answer the questions certified, as _ its
jurisdiction is limited by the Constitution and the
Code to the review of questions of law, and the
power of the Appellate Division to allow an appeal
to the Court of Appeals is also limited to questions
of law. (Matter of Westerfield, supra.)

172
THE COURT OF APPEALS.

§ 120. Presumption as to grounds of decision where
questions are certified.

If, however, the question as certified, is a ques-
tion of law, but the order is one which might have
been made in the exercise of discretion, it will be
presumed in view of the certificate, that the deter-
mination was made upon the merits, unless it ex-
pressly appears by the record that it was made in
the exercise of discretion (Matter of Davies, 168
N. Y. 89), and when an order certifying a ques-
tion for review expressly refers to the opinion of
the Appellate Division, since the jurisdiction to
review depends upon the order of certification, the
opinion becomes a part of the record, and may be
resorted to by the Court of Appeals for the pur-
pose of ascertaining the ground of the decision ap-
pealed from. (Pringle vs. L. I. R. R. Co., 157
N. Y. 100.)

The rule laid down in the case last cited as to
the right to consult the opinion where an appeal
is allowed from an order not appealable as of right
differs from the rule laid down in Townsend vs.
Bell, 167 N. Y. 462, as to the right to consult the
opinion for the purpose of determining whether a
reversal of a judgment of a court or referee was
on the facts or on the law. It was held in Town-
send vs. Bell (supra), that in such a case, the opin-
ion could not be made part of the order so as to dis-
pense with the necessity of an explicit statement
that the reversal was on the facts in order to avoid

173
THE COURT OF APPEALS.

the presumption that it was upon the law. The
decision in the Pringle case seems to establish a
different rule on appeals from intermediate orders.

§121. Jurisdiction of the court to review orders and
judgments in criminal cases. What orders
and judgments may be reviewed.

The jurisdiction of the court in criminal cases is
defined by sections 517, 519, 528 and 771 of the
Code of Criminal Procedure. By section 519 it is
provided that an appeal may be taken from a judg-
ment or order of the Appellate Division of the Su-
preme Court to the Court of Appeals in the fol-
lowing ‘cases and no other:

1. From a judgment affirming or reversing a
judgment of conviction.

2. From a judgment affirming or reversing a
judgment for the defendant on a demurrer to the
indictment or from an order vacating or reversing
an order of the court arresting judgment.

3. From a final determination affecting a sub-
stantial right of the defendant.

In cases where judgment is of death, the appeal
is directly from the judgment of conviction to the
Court of Appeals, and on such an appeal, the court
has power to review the facts as well as the law
(Code Crim. Pr., sec. 517, 528). In all other ap-
peals, the jurisdiction of the court is limited by
the general provision of the Constitution which
confines its jurisdiction to the review of questions of
law (see ante, p. 77). Where the appeal is from

174
THE COURT OF APPEALS.

a judgment reversing a judgment of conviction,
the order of reversal must show that as to the facts
the judgment was affirmed,. or the Court of Ap-
peals will be required to dismiss the appeal. (Peo-
ple vs. O’Brien, 164 N. Y. 57, ante, p. 39.) An
order reversing a judgment for the defendant on
demurrer, though an interlocutory and not a final
judgment is reviewable by the Court of Appeals un-
der subdivision 2 of section 519 above quoted, for
the provisions of the Constitution limiting the
court’s jurisdiction in civil actions do not apply to
criminal causes. (People vs. Drayton, 168 N. Y.
13.) In that case, the Court said:

“The appeal in this case is from an interlocu-
tory order in a criminal case. It decides nothing
except the sufficiency of a pleading. It is not a
final judgment or a final order, and if it had been
made in a civil case it would not have been re-
viewable in this Court as matter of right. But the
limitations of the Code of Civil Procedure upon ap-
peals to this Court have no application, since by
the express terms of section five hundred and nine-
teen of the Code of Criminal Procedure, enacted
since the present Constitution went into effect, an
appeal is given as matter of right from a judgment
affirming or reversing a judgment for the defend-
ant on a demurrer to the indictment and this court
has held that appeals in such cases are proper.
(People vs. Willis, 158 N. Y. 392; People vs. Klip-
fel, 160 N. Y. 371; People vs. Kane, 161 N. Y.
480).”

175
THE COURT OF APPEALS.

For the same reason, a judgment reversing a
judgment of conviction in a criminal case may be
reviewed, though no stipulation for judgment ab-
solute is given. (People vs. Miller, 169 N. Y.

339-)
§ 122. Continued.

As an incident to the court’s power to review a
judgment, it may under section 517 of the Code of
Criminal Procedure, review “any actual decision
of the court in an intermediate order or proceeding
forming part of the judgment-roll.’’ An order de-
nying a motion for a new trial on the ground of
newly discovered evidence is an intermediate order
within the meaning of this provision, if made and
decided in time to be included in the case and at-
tached to the judgment-roll. (People vs. Priori,
163 N. Y. 99.) But if, after judgment of death
has been affirmed, an order is made denying a mo-
tion for a new trial on the ground of newly discov-
ered evidence, an appeal may not be taken therefrom
(People vs. Mayhew, 151 N. Y. 607; People vs.
Trezza, 128 N. Y. 529). To give the court juris-
diction the order must be intermediate and must
form part of the judgment roll. If made after the
judgment roll has already been completed, it does
not satisfy these requirements, and hence is not
appealable.

§ 123, Continued.

The provisions of the Criminal Code above quot-
ed apply to appeals from the Criminal Term of the
176
THE COURT OF APPEALS.

Supreme Court, or from the County Court, or the
Court of General Sessions, or other Criminal Courts
of record (Code Crim. Pr., sec. 11). They do not
apply to appeals from judgments of conviction ren-
dered by a Court of Special Sessions, Police Court,
police magistrate or justice of the peace in any crim-
inal action, or proceeding of a criminal nature (Peo-
ple ex rel. Commissions of Charities vs. Cullen, 151
N. Y. 54, 59; People vs. Malone, 169 N. Y. 568).
In such cases, the Appellate Division acts as the
Court of last review, “ except that where the origi-
nal appeal was from a judgment of commitment of
a child, either party may appeal to the Court of
Appeals in like manner as a defendant under sec-
tion 519’’ (Code Crim. Pr., sec. 771; People ex rel.
vs. Cullen, supra), and except also that by L. 1895,
c. 601, sec. 20 (reénacted substantially in sec. 1414
of the Charter of the City of New York, L. 1901, c.
466)., where on appeal from the Court of Special
Sessions of the City of New York, the judgment
of the Supreme Court is adverse to the defendant,
he may appeal to the Court of Appeals (People ex
rel. Commrs. vs. Cullen, 153 N. Y. 629; People
vs. Malone, supra). But if the judgment of the
Supreme Court in such a case is in favor of the
defendant, no right to appeal further is given to
the people. Accordingly, the Court of Appeals has
no power to review a judgment of the Appellate
Division reversing a conviction in the Court of Spe-
cial Sessions in the City of New York, whereby the
defendant was adjudged a disorderly person and

177
THE COURT OF APPEALS.

required to pay a certain sum each week for the
support of his wife, under section 292 of the Penal
Code (People ex rel. vs. Cullen, 151 N. Y. 54;
People vs. Malone, supra).

§ 124. Original jurisdiction of the court.

The Court of Appeals is a court of review and
is not a court of original jurisdiction. It has no
power therefore on original motion to order the
filing, nunc pro tunc, of an attorney’s oath for the
purpose of registration under Chapter 165 of the
Laws of 1898, since the duty imposed upon the
Clerk of the Court of Appeals by that act is inde-
pendent of the court, and with regard to those du-
ties he must be treated as an independent public offi-
cer (In re Caruthers, 158 N. Y. 131). On the
other hand, the court has such original jurisdiction
as is necessary to render effectual the exercise of
the appellate jurisdiction which is the purpose of
its existence. The power to hear and decide an
appeal involves the right to compel the performance
of such duties as may be necessary to the exercise
of that power. For this reason, it has been held
that the court will entertain a motion to compel the
clerk of the Supreme Court to comply with the pro-
visions of the statute touching the preparation of
cases upon appeal from judgments of death. (Peo-
ple vs. Conroy, 151 N. Y. 543, 547; People vs. Pri-
ori, 163 N. Y. 99). But its original jurisdiction is
strictly ancillary to its appellate jurisdiction.

178
THE COURT OF APPEALS.

§ 125. Jurisdiction limited to “actual determinations.”
Judgments by default or pro forma.

The statute limits the jurisdiction of the court
to the review of “ actual determinations.” There is
thus excluded the power to review a judgment ren-
dered by default. (Matter of Peekamoose Fishing
Club, 151 N. Y. 511; Van Arsdale vs. King, 155
N. Y. 325, 329; Peterson vs. Swan, 119 N. Y.
662). For the same reason where a cause is sub-
mitted to the court below on stipulation of the at-
torneys and judgment entered pro forma for the
purpose of bringing an appeal to the Court of Ap-
peals, the court will decline jurisdiction (Gridley
vs. Daggett, 6 How. Pr. 280). But where a party
appeals from a judgment to the Appellate Division
and the other party makes default and the Appel-
late Division refuses, none the less, to grant a new
trial, this is an actual determination and the ap-
pellant may appeal to the Court of Appeals not-
withstanding the default of his adversary (Seneca
Nation vs. Knight, 19 N. Y. 587).

§ 126. Continued. Abstract controversies.

Aside from the restriction of the statute, consid-
erations of the nature of the judicial function, ap-
plicable to all tribunals (Hatfield vs. King, 184 U.
S. 165; Mills vs. Green, 159 U. S. 651, 653, 654),
limit the court to the review of genuine controver-
sies, and deny to it the power to consider academic
or abstract questions. If, therefore, through

179
THE COURT OF APPEALS.

changed events, the questions presented by an ap-
peal have become purely theoretical, the court will
dismiss the appeal. (Matter of Strauss, 157 N. Y.
720, 721; Matter of Norton, 158 N. Y. 130; Dur-
yea vs. Fuechsel, 145 N. Y. 645; Matter of Man-
ning, 139 N. Y. 446; People ex rel. Geer vs. Com-
mon Council of Troy, 82 N. Y. 575; People vs.
Clark, 70 N. Y. 518; Bush vs. O’Brien, 164 N. Y.
205.) In cases of public importance, however, the
court has sometimes infringed upon this limitation
and has entertained an appeal after the specific con-
troversy before it had ceased to be of practical
importance, for the purpose, in the public interest,
of settling the law (Matter of Madden, 148 N. Y.
136; Matter of Fairchild, 151 N. Y. 359; Matter of
Norton, 158 N. Y. 130; In re Gage, 141 N. Y.
112.) But it has wisely held that only exceptional
cases, where the urgency of establishing a rule of
conduct is imperative and manifest, will justify such
a departure from its general practice. (Matter of
Norton, supra.)

We have now considered the questions which the
court is empowered to decide and the controver-
sies which it is empowered to hear. A brief state-
ment should be added of the manner in which ap-
peals may be brought before the court so as to
confer jurisdiction, and the manner in which juris-
diction, once conferred, may be terminated.

180
THE COURT OF APPEALS.
§ 127. Who may appeal.

Any party or person aggrieved by the result,
who was a party to the appeal at the Appellate
Division, may appeal to the Court of Appeals. The
rules governing appeals to that court, so far as
the capacity of parties and aggrieved persons to
prosecute them is concerned, are the same as those
_ governing appeals to the Appellate Division, but no
person or party may appeal to the Court of Ap-
peals, where, by failure to appeal to the Appel-
late Division, he has acquiesced in the judgment
of the trial court (Platt vs. Platt, 105 N. Y. 488,
496); nor may any party appeal from a decision
rendered on his own default (ante, p. 179). The
fact that a party has paid the judgment which he
seeks to reverse, does not deprive him of the right
to appeal, unless the payment was by way of com-
promise, or with an agreement not to take or pur-
sue an appeal (Hayes vs. Nourse, 107 N. Y. 577;
MacEvitt vs. Maass, 64 App. Div. 382). If the
party appealing to the court has no interest in the
controversy, the appeal must be dismissed. (Bry-
ant vs. Thompson, 128 N. Y. 427; Hyatt vs. Du-
senbury, 106 N. Y. 663; People ex rel. Breslin vs.
Lawrence, 107 N. Y. 607; McLouth vs. Hunt, 154
N. Y. 179, 188; People ex rel. Burnham vs. Jones,
110 N. Y. 509).

§ 128. Continued.

Where a judgment in favor of defendants whose
liability is several and not joint, is reversed on ap-
181
THE COURT OF APPEALS.

peal to the Appellate Division, one of the defend-
ants may appeal to the Court of Appeals, whether
the others join with him or not. If the other de-
fendants do not desire to appeal, they may go back
for a new trial. If it deems wise, the Court of
Appeals may postpone the argument of the appeal
until the new trial as to the other defendants is
had, or the trial as to the other defendants may be
suspended by the court below until the appeal is
heard. The course to be pursued is always in the
discretion of the courts, which is to be exercised
in view of the circumstances of the particular case
(Williams vs. W. U. Tel. Co., 93 N. Y. 162, 194).

§ 129. When appeal must be taken.

The time within which the appeal must be taken
is regulated as to civil cases by section 1325 of the
Code of Civil Procedure, and as to criminal cases
by section 521 of the Code of Criminal Procedure.
The former section reads as follows: “ An appeal
to the court of appeals from a final judgment
must be taken within one year after final judgment
is entered on the determination of the appellate
division of the supreme court, and the judgment
roll filed. An appeal to the court of appeals from
an order must be taken within sixty days after ser-
vice upon the attorney for the appellant of a copy
of the order appealed from and a written notice of
the entry thereof.” In order to set the time run-
ning within which an appeal from a final judgment
must be taken, it is. not necessary that notice of

182
THE COURT OF APPEALS.

the judgment or of its entry should be given
(Marsh vs. Pierce, 110 N. Y. 639). If, however,
the appeal is from an order, including in that term
an order granting a new trial, service of a copy of
the order and a written notice of the entry thereof
is required; and the respondent, in moving to dis-
miss an appeal on the ground that the time for
appealing has expired, must show a strict and tech-
nical compliance with the statute on his part (Good
vs. Daland, 119 N. Y. 153; Matter of N. Y.C.&
H.R. R. R. Co., 60 N. Y. 112). If, therefore,
the copy of the order as served omits the signature
of the clerk, the service is defective, and unavail-
ing to limit the time to appeal (Good vs. Daland,
supra). So, notice of an order before the entry
thereof is insufficient, nor is the necessity for notice
obviated by the fact that the party appealing has
entered the order himself (Matter of N. Y. C. &
H. R. R. R. Co., supra, at p. 115). But the fact
that a notice of entry of an order of the Appellate
Division refers to the final entry in the office of the
County Clerk, without referring to the preliminary
entry in the office of the clerk of the Appellate
Division, does not render the notice insufficient.
(Guarantee Trust Co. vs. Phila. &c. R. R. Co., 160
N. Y. 1.) ‘ While it has sometimes been held that
strict compliance with section 1325 and similar
statutes is required to limit the time of a party to
appeal, still we think that the statute should not
be so rigidly construed as to nullify its object or to
make it difficult of application. The evident pur-
183
THE COURT OF APPEALS.

pose of that section was to enable parties to avoid
undue delays and to promptly secure the final deter-
mination of their cases”’ (Guarantee Trust Co. vs.
Phil. &c., R. R. Co., supra). Where leave of the
Appellate Division is necessary in order to confer
upon a party the right to appeal, the time within
which an appeal must be taken does not begin to
run until such leave has been obtained. But the
motion for leave to appeal must be made either at
the term of the Appellate Division at which the de-
cision was rendered, or at the next succeeding term
(Porter vs. International Bridge Co., 163 N. Y.
79; S. S. Richmond Hill Co. vs. Seager, 160 N. Y.
312; Guarantee Trust Co. vs. Phil. &c. R. R. Co.,
160 N. Y. 1).

The rule as to criminal cases is prescribed by sec-
tion 521 of the Code of Criminal Procedure, which
provides: ‘An appeal must be taken within one
year after the judgment was rendered, or the order
entered.”

§ 130. Continued.

The legislature, by virtue of its control over the
law of remedies, has the power, under the Consti-
tution, to extend the time to appeal from judgments
in pending causes, but its power in that regard is
confined to causes pending at the time when the
statute extending or conferring the right of appeal
is passed. If at that time final judgment has been
rendered and the time to appeal therefrom has ex-
pired, or if the only appeal allowed by existing

184
THE COURT OF APPEALS.

provisions of law has been taken and decided, a fur-
ther right to appeal cannot be conferred by legisla-
tion (Germania Savings Bank vs. Suspension
Bridge, 159 N. Y. 369). The Court there said:

“The legislature has control of remedies so far
as they affect existing actions. This control in-
cludes the power to extend the time to appeal, or
to grant a new right of appeal, provided some time
yet remained, according to the law in force when
the legislature acted, within which an appeal might
have been taken. If, however, according to the law
existing when the statute extending the time to ap-
peal, or granting a new right of appeal, was passed,
the judgment had become final and unalterable, be-
cause no further right of appeal existed, then the
judgment conferred a vested right and was property
of which the owner could not be deprived by an
act of the legislature, or otherwise than through due
process of law. An appeal brought pursuant to a
statute which authorizes an appeal after the time
provided by law had expired, or authorizes a fur-
ther appeal after the only appeal authorized by
law had been brought and finally decided, although
it might result in the reversal of the judgment and
be in form a judicial proceeding, would not be what
is known as due process of law, which is not satis-
fied by a judgment based upon an unconstitutional
statute.”
THE COURT OF APPEALS.

§131. How appeal must be taken. Undertaking, re-
turn and case.

The notice of appeal in civil cases to be effectual
for any purpose must be accompanied by an under-
taking to the effect that the appellant will pay all
costs and damages which may be awarded against
him on the appeal, not exceeding $500; and the
appeal is perfected when such an undertaking is giv-
en and a copy thereof with notice of the filing there-
of is served (Code Civil Procedure, sec. 1326).

The Court has no power to dispense with the un-
dertaking required by this section (Architectural
Iron Wks. vs. City of Brooklyn, 85 N. Y. 652).
Unless the undertaking is filed, the appeal will be
dismissed (Reese vs. Boese, 92 N. Y. 632). But
if the notice of appeal has been seasonably given,
and a motion is made to dismiss the appeal for
failure to file the undertaking, the court, if satisfied
that the neglect was excusable, may permit the
omission to be supplied (Architectural Iron Wks.
vs. City of Brooklyn, supra; Cowdin vs. Teal, 67 N.
Y. 581). If the sureties on the undertaking first
given fail to justify, a new undertaking may be
filed. (Blake vs. Lyon Mfg. Co., 75 N. Y. 611.)
The dismissal of an appeal for failure to file an un-
dertaking is not a bar to a new appeal at any time
before the statutory period in which to take an ap-
peal has expired (Culliford vs. Gadd, 135 N. Y.
632; Sperling vs. Boll, 26 App. Div. 64).

The appellant must within twenty days after the

186
THE COURT OF APPEALS.

appeal is perfected, cause the return to be filed with
the Clerk of the Court of Appeals (Code Civ. Pr.,
sec. 1315). By Rule I it is provided that “if the
appellant shall not cause the proper return to be
made and filed with the Clerk of this court within
the time prescribed by law, the respondent may, by
notice in writing, require such return to be filed
within ten days after the service of the notice, and
if the return be not filed in pursuance of such no-
tice, the appellant shall be deemed to have waived
the appeal; and on an affidavit proving that the ap-
peal was perfected, and the service of such notice,
and a certificate of the Clerk that no return has been
filed, the respondent may enter an order with the
clerk dismissing the appeal for want of prosecution,
with costs; and the court below may thereupon pro-
ceed as though there had been no appeal.” If the
return is defective, a further return may be ordered
(Rule II). It is the appellant’s duty also to pre-
pare a case which is to consist of a copy of the re-
turn, with the opinions in the court below, and an
appropriate index (Rule IV). Three copies of the
case must be served on the respondent’s attorney
within forty days after the appeal is perfected
(Rule VI; Hobart vs. Hobart, 85 N. Y. 637).
Otherwise, the respondent may by ten days’ notice
in writing require that the copies be served; and
if such notice is not complied with, the appellant
shall be deemed to have waived the appeal (Rule
VI; Sage vs. Volkening, 46 N. Y. 448; Bliss vs.
Hoggson, 84 N. Y. 667). The return must, of
187
THE COURT OF APPEALS.

course, consist of the same papers on which the ap-
peal was heard in the court below (Matter of Bai-
ley, 85 N. Y. 629; States vs. Cromwell, 104 N. Y.
664; Johnson vs. Whitlock, 13 N. Y. 344). If the
return has been duly filed and the case duly served,
it is not a ground for the dismissal of the appeal
that the appellant has failed to notice it for argu-
ment and put the case on the calendar (Nichols vs.
MacLean, 98 N. Y. 458). The respondent may do
this himself.

§ 132. What applications must still be made in the
court below after appeal to the Court of
Appeals.

The jurisdiction of the court once acquired, does
not oust the jurisdiction of the Supreme Court to
determine any matter arising in the action or pro-
ceeding other than the hearing and determination of
the appeal or of applications connected therewith.
Thus, the Appellate Division, while an appeal from
its order is pending in the Court of Appeals, has
power to amend the order by inserting a statement
that the reversal was on a question of fact (Health
Dep’t vs. Dassori, 159 N. Y. 245; Birnbaum vs.
May, 170 N. Y. 314), or to amend the record in
other respects (Peterson vs. Swan, 119 N. Y. 662) ;
and a motion to remit the record for that purpose
will, therefore, be denied as unnecessary. But, of
course, the Court of Appeals cannot itself amend the
record (Kenyon vs. N. Y. C.& H. R. R. R. Co.,
76 N. Y. 607). So, the pendency of the appeal in

188
THE COURT OF APPEALS.

the Court of Appeals is no bar to a motion in the
court below for a new trial, on the ground of newly
discovered evidence, and a motion that the return be
transmitted to the court below for use on such mo-
tion will be denied as unnecessary (Henry vs. Al-
len, 147 N. Y. 346). For the same reason, a mo-
tion to compel the appellant’s attorneys to turn over
the papers to a substituted attorney must be made,
not in the Court of Appeals, but in the Supreme
Court (People ex rel. Hoffman vs. Board of Edu-
cation, 141 N. Y. 86). The Court there said:

“In all matters pertaining to the appeal itself,
and the proper hearing thereof, this court has juris-
diction, and also in regard to all applications which
by statute may be made to this court after the tak-
ing of an appeal; but as to all other applications the
case is regarded as still pending in the Court of
original jurisdiction, and such applications should
be made to that Court.”

§ 133. When jurisdiction of the court is terminated.
Rearguments.

The jurisdiction of the Court of Appeals is ter-
minated when the remittitur is filed in the court be-
low, and action is taken thereon by that court.
Section 194 of the Code of Civil Procedure pro-
vides: ‘‘ The judgment or order of the Court of
Appeals must be remitted to the court below to be
enforced according to law.’ And the Court held,
in People ex rel. Smith vs. Village of Nelliston (79
N. Y. 638), that the court does not lose jurisdic-

189
THE COURT OF APPEALS.

tion of a cause brought before it upon appeal un-
til the remittitur has been filed in the court below,
and that court has taken some action thereon. If
the Court of Appeals desires, therefore, to change
its decision, it will request the return of the remit-
titur; but the filing of the remittitur does not de-
prive the court of the right to determine whether it
will or will not grant a motion for reargument. If
it decides to grant a reargument, the return of the
remittitur then becomes necessary; but it may de-
termine, while the remittitur remains filed in the
court below, whether it will or will not elect to re-
sume jurisdiction. The practice on this subject
has been involved in some confusion, and it has
been stated very clearly by Judge Bartlett, in Frank-
lin Banknote Co. vs. Mackey (158 N. Y. 683). It
was there held:

“It is competent for a judge of the Court of Ap-
peals, after its remittitur has been filed and order
entered thereon in the court below, to make an
order to show cause why the return of the remit-
titur should not be requested and a reargument
granted, with a stay of proceedings in the meantime.

“Tt is not necessary that the remittitur be re-
turned, before the court has jurisdiction to pass up-
on the question whether it will grant or refuse the
motion for a reargument. The court, notwith-
standing the filing of the remittitur, is competent to
determine whether it will resume jurisdiction; and
if it decides to do so, it then requests the court be-
low to return the remittitur yo that the reargument

190
THE COURT OF APPEALS.

may be had or the remittitur amended, as the case
may be. It is true that the court must be repos-
sessed of the remittitur, but there is no objection to
the return of the remittitur following the deter-
mination of the court to resume jurisdiction.”

§ 134, Rearguments.

The circumstances under which a reargument
will be granted are set forth in Rule XX of the Rules
of the Court of Appeals: “Motions for reargu-
ment will only be heard on notice to the adverse
party stating briefly the grounds upon which a re-
argument is asked, and such motions must be sub-
mitted on printed briefs, stating concisely the points
supposed to have been overlooked or misapprehend-
ed by the court, with proper reference to the par-
ticular portion of the case, and the authorities relied
upon, and counsel will not be heard orally.” To
justify the granting of the motion, it should appear
“that some question decisive of the case and duly
submitted by counsel has been overlooked by the
court, or that the decision is in conflict with the
statute or a controlling decision to which the atten-
tion of the court was not drawn through the neglect
or inadvertence of counsel” (Mount vs. Mitchell,
32 N. Y. 702; Marine Nat. B’k vs. Nat. City B’k,
59 N. Y. 67; Fosdick vs. Town of Hempstead, 126
N. Y. 652). No inference that a point was over-
looked is to be drawn merely from the fact that it
was not discussed in the opinion (Fosdick vs. Town

IQI
THE COURT OF APPEALS.

of Hempstead, supra; Colonial City Traction Co.
vs. Kingston R. R. Co., 154 N. Y. 493). The
court has adhered with strictness to these rules.
THE COURT OF APPEALS,

APPENDIX.

The following summary of the rules regulating
the form of orders upon appeal to the Court of Ap-
peals, has been made for convenience of reference.

I. Orders reversing judgments of a referee or
a court, without a jury.

Whenever the reversal is on the facts as well as
the law, the order of reversal should so state; and
a reversal is on the facts, unless it is based upon one
of the following classes of error :—

1. A material error in receiving or reject-
ing evidence.

2. A failure of the facts found to support
the conclusion of law.

3. The finding of a material fact without
any evidence to support it.

Unless the order shows that the reversal is on the
facts, the court will presume that it is on the law;
and if none of the classes of errors above enumerat-
ed appears, will reverse the order of reversal and
affirm the judgment of the trial court. If the or-
der shows that the reversal is on the facts, the
Court of Appeals is without jurisdiction to review
it, and will dismiss the appeal, or in some instances
affirm the judgment. But an exception is recog-

193
THE COURT OF APPEALS.

nized where there are no controverted facts on which
a reversal could have been founded, nor any con-
flicting inferences to be drawn from conceded facts,
nor uncontroverted facts not found in the decision,
for in such cases the court will disregard the recital
that the judgment was reversed on the facts and
treat it as a reversal on the law.

II. Orders reversing final orders in special pro-
ceedings.

These are governed by the same rules as orders
reversing judgments of a referee, or of a court
without a jury. They must show expressly that
they were based upon the facts, or they will be
presumed to have been based upon the law. An
exception apparently has been recognized in manda-
mus and certiorari proceedings, where a reversal
will be presumed, according to some decisions, to be
upon discretionary grounds unless the contrary ap-
pears.

III. Orders reversing judgments in actions tried
before a jury.

If the appeal is solely from the judgment entered
upon the verdict, and not from an order denying
a motion for a new trial, the grounds of the re-
versal need not be stated.

If the appeal is from the judgment entered upon
the verdict, and also from an order denying a mo-
tion for a new trial upon grounds appealing to the
court’s discretion, the order of reversal is not re-
viewable in the Court of Appeals unless by the or-

194
THE COURT OF APPEALS.

der it appears that while the judgment was re-
versed, the order denying the motion for a new trial
was affirmed, or the appeal therefrom dismissed, or
that the reversal of the judgment and order was on
the law solely, the court having examined the facts
and found no error therein. But merely to state
that the reversal was on the law solely, without
adding that as to the facts the order was approved,
is not enough, and where that is the form of the
order of reversal, the appeal will be dismissed.

The same rule applies to an order reversing an
order directing the issuance of a writ of mandamus
after trial before a jury of the issues raised by an
alternative writ and the return thereto, where a
motion for a new trial under section 999 has been
made and denied.

In criminal causes also, an order granting a new
trial is not reviewable in the Court of Appeals un-
less it appears thereby that the reversal was on
the law solely, and that as to the facts the con-
viction was approved.

IV. Orders affirming judgments or final orders.

Since an affirmance of a judgment imports ex vi
termini the approval both of the law and of the
facts supporting it, it is not necessary where a judg-
ment is affirmed to state the grounds of the affirm-
ance. If, however, the affirmance is unanimous,
that fact should be stated in the order. Where the
judgment is unanimously affirmed, and the action is
one of those specified in subdivisions 1 and 2 of

195
THE COURT OF APPEALS.

section 191 of the Code, it is not necessary to certify
specific questions, but it is enough to certify gen-
erally that questions of law are involved which ought
to be reviewed by the Court of Appeals.

V. Appeals from intermediate orders.

If the order is one which may have been made
upon discretionary grounds, it must appear, to give
to the Court of Appeals the power of review, that
the order was made not in the exercise of discretion,
but as matter of law; e. g., for want of power to
grant the relief. If, however, an appeal is allowed
by the Appellate Division, and a question of law is
certified for review, this is sufficient to justify a pre-
sumption, unless the contrary expressly appears,
that the decision was on the merits and not on some
discretionary ground. The order allowing the ap-
peal should certify the specific questions to be re-
viewed. Each question should be separately stated
so that it can be answered yes or no; and no ques-
tion should be certified as an abstract proposition.
THE COURT OF APPEALS.

FORMS.

I. Order reversing judgment in action tried before
referee, or before the court without a jury.

(a) Reversal on the law.

“Ordered that the said judgment be and the
same is hereby reversed, and a new trial ordered,
with costs to the appellant to abide the event.”

[another form]

“Ordered that the said judgment be and the
same is hereby reversed, upon the law only, the
court having examined the facts and found no er-
ror therein, and it is further

“ Ordered that a new trial be and the same is
hereby granted, with costs to the appellant to
abide the event.”

(b) Reversal on the law and the facts.

“Ordered that the said judgment be and the
same is hereby reversed both upon the facts and
upon the law; and a new trial ordered, with costs
to the appellant to abide the event.”

II. Order reversing final order in special proceeding.

“ Ordered that the said [final] order be and the
same is hereby reversed [upon the law and the
facts ].

Order reversing final order where relief is dis-
cretionary.

“ Ordered that the said [final] order be and the

197
THE COURT OF APPEALS.

same is hereby reversed, not in the exercise of the
court’s discretion, but upon the ground that as
a matter of law the petitioner is not entitled to any
relief herein, and it is further

“Ordered that the said proceeding be and the
same is hereby dismissed.”

[Substantially the form adopted in People ex
rel. Linton vs. Brooklyn Heights R. R. Co., 172
N. Y. go.]

III. Order reversing judgment and order denying mo-
tion for new trial in action tried before jury.

(a) “Ordered that the said judgment and or-
der be and the same are hereby reversed, and a
new trial ordered with costs to the appellant to
abide the event.”

(b) Order reversing judgment and order de-
nying motion for new trial in action tried before
jury, so as to show that reversal was on the law
only.

“ Ordered that the said judgment and order be
and the same are hereby reversed, upon the law
solely, the court having examined the facts and
found no error therein, and it is further

“ Ordered that a new trial be and the same is
hereby granted, with costs to the appellant to
abide the event.’

[another form]

“Ordered that the said judgment be and the
same is hereby reversed, upon the law solely, and
that the appeal from the said order denying the

198
THE COURT OF APPEALS.

motion for a new trial be dismissed [or that said
order be affirmed] with costs to the appellant to
abide the event.”

IV. Judgment of affirmance where decision is unani-
mous.

“It is unanimously

Ordered that the said judgment be and the same
is hereby affirmed with costs.”

[another form]

“And the court having unanimously decided that
the findings of fact [or the verdict] are supported
by the evidence, it is

“Ordered that the said judgment be and the
same is hereby affirmed with costs.”

V. Order allowing appeal under subdivision 2 of sec-
tion 191 of Code of Civil Procedure.

“Ordered that this court certifies that a ques-
tion of law is involved which, in its opinion, ought
to be reviewed by the Court of Appeals; and it is
further

“Ordered that the defendant’s motion for leave
to appeal to the Court of Appeals from the judg-
ment of affirmance entered herein, be and the same
is hereby granted.”

[Young vs. Fox, 155 N. Y. 615, 617.]

VI. Order allowing appeal from intermediate order.

“Ordered that the appellant’s motion for leave
to appeal to the Court of Appeals from such order

199
THE COURT OF APPEALS.

of affirmance be and the same is hereby granted,
and that the following question be certified: Was
the statement on which the judgment by confes-
sion was entered, sufficient under subdivision 2 of
sec. 1274 of the Code of Civil Procedure? ”

[Substantially the form adopted in Critten vs.
Vredenburgh, 151 N. Y. 536.]

[another form]

“Ordered that the appellant’s motion for leave
to appeal to the Court of Appeals be and the same
is hereby granted, and it is further

“Ordered that the following questions be cer-
tified for review:

ist. Does the amended complaint in this action
set forth a cause of action in equity?

2nd. Has there been an improper joinder of
causes of action in the amended complaint herein? ”

[O’Brien vs. Fitzgerald, 150 N. Y. 572.]

RULES OF THE COURT OF APPEALS OF THE
STATE OF NEW YORK.

[Adopted Oct. 22, 1894, with amendments to Jan. 1,
1903. ]
RULE I.
APPELLANT TO FILE RETURN — EFFECT OF
OMISSION.

If the appellant shall not cause the proper re-
turn to be made and filed with the Clerk of this
court within the time prescribed by law, the re-
spondent may, by notice in writing, require such

200
THE COURT OF APPEALS.

return to be filed within ten days after the service
of the notice, and if the return be not filed in pur-
suance of such notice, the appellant shall be deemed
to have waived the appeal; and on an affidavit
proving that the appeal was perfected, and the
service of such notice, and a certificate of the Clerk
that no return has been filed, the respondent may
enter an order with the Clerk dismissing the ap-
peal for want of prosceution, with costs; and the
court below may thereupon proceed as though
there had been no appeal.

RULE II.

FURTHER RETURN MAY BE ORDERED.

If the return made by the Clerk of the court be-
low shall be defective, either party may, on an
affidavit, specifying the defect, and on notice to
the opposite party, apply to one of the judges of
this court for an order, that the Clerk make a fur-
ther return without delay.

RULE III.

ATTORNEYS AND GUARDIANS BELOW TO CONTINUE
TO ACT.

The attorneys and guardians ad litem of the re-
spective parties in the court below shall be deemed
the attorneys and guardians of the same parties re-
spectively, in this court, until others shall be re-
tained or appointed, and notice thereof shall be
served on the adverse party.

201
THE COURT OF APPEALS.
RULE IV.
APPELLANT TO MAKE A CASE—ITS FORM.

In all calendar causes a case shall be made by the
appellant, which shall consist of a copy of the re-
turn, and the reasons of the court below for its
judgment, or an affidavit that the same cannot be
procured, together with an index to the pleadings,
exhibits, depositions and other principal matters.
Every opinion in the cause at special term, as well
as at the Appellate Division of the Supreme Court,
relating to the questions involved in the appeal, is
included by the foregoing provision.

RULE V.

CASES AND POINTS TO BE PRINTED — MODE OF
PRINTING.

All cases and points, and all other papers fur-
nished to the court in calendar causes, shall be
printed on white paper, as provided in sec. 796 of
the Code of Civil Procedure. The folio, number-
ing from the commencement to the end of the case,
shall be printed on the outer margin of the page.
Small pica, solid, is the smallest letter and most
compact mode of composition which is allowed.
No charge for printing the papers mentioned in
this rule shall be allowed as a disbursement in a
cause, unless the requirements of the preceding
sentence shall be shown by affidavit, to have been
complied with in all papers printed. (This rule
is printed in “small pica, solid.’’)

202
THE COURT OF APPEALS.
RULE VI.

APPELLANT TO SERVE COPIES OF CASE — EFFECT OF
HIS DEFAULT.

Within forty days after the appeal is perfected,
the appellant shall serve three printed copies of the
case on the attorney of the adverse party. If he
fail to do so, the respondent may, by notice in writ-
ing, require the service of such copies within ten
days after service of the notice, and if the copies
be not served in pursuance of such notice, the ap-
pellant shall be deemed to have waived the appeal;
and on an affidavit proving the default and the
service of such notice, the respondent may enter
an order with the Clerk dismissing the appeal for
want of prosecution, with costs, and the court below
may thereupon proceed as though there had been

no appeal.
RULE VII.

COPIES OF CASES AND POINTS.

At least twenty days before a cause is placed
on the day calendar, the appellant shall file with the
Cierk sixteen printed copies of the case; and shall
at the same time file with the Clerk sixteen printed
copies, and serve on the attorney or counsel for
the respondent three printed copies, of the points
to be relied on by him, with a reference to the au-
thorities to be cited. Within ten days after such
service the respondent shall file with the Clerk six-

203
THE COURT OF APPEALS.

teen printed copies, and serve on the attorney or
counsel for the appellant three printed copies, of
the points to be relied on by him, with a reference
to the authorities to be cited.

If the appellant desires to present points or au-
thorities in reply, he shall file with the Clerk six-
teen printed copies thereof and serve three printed
copies on the attorney or counsel for the respon-
dent, within five days after receipt of the respon-
dent’s points; and no supplemental points will be
allowed from either side unless specially requested
by the court.

No points will be received by the court on ar-
gument or submission unless they shall have been
filed and served as above provided. This rule, so
far as it relates to the filing of the printed papers,
and the filing and service of the printed points,
shall not apply to “Appeals from orders entitled
to be heard as motions,” and in all cases to be ar-
gued during the first two weeks of any term com-
mencing next after the making of a new calendar,
the parties shall file the printed papers, and file and
serve or exchange the printed points, at least two
days before the causes shall be placed upon the day
calendar.

The cases and points filed with the Clerk shall
be disposed of as follows: One copy shall be fur-
nished to each of the judges; one copy thereof
shall be kept by the Clerk, with the records of the
court; one copy thereof shall be deposited in the

204
THE COURT OF APPEALS.

State Library; one copy shall be deposited in each
branch of the library of the Court of Appeals; one
copy shall be deposited in the library of the New
York Law Institute; one copy shall be deposited
in the Law Library of Brooklyn; one copy shall
be deposited in the Law Library of the Eighth Ju-
dicial District, and one copy shall be delivered to

the Reporter.
RULE VIII.

STATEMENT AND DISCUSSION OF FACTS.

In all causes each party shall briefly state upon
his printed points, in a separate form, the leading
facts which he deems established, with a reference
to the folios where the evidence of such facts may
be found. And the court will not hear an extended
discussion upon eny mere question of fact.

Every cause shall be deemed to be submitted to
such judges as may be absent at the time of the
argument, unless objection to such submission by
counsel arguing the cause be then made.

RULE IX.

CRIMINAL CAUSES.

Appeals in criminal causes brought after making
up the calendar, or too late to be placed on said
calendar, may be put upon the calendar at any time,
and brought on for a hearing as preferred causes,
upon a notice of ten days; and it shall be the duty
of the Clerk to place such causes on the calendar

205
THE COURT OF APPEALS.

for the day for which they shall be noticed or
upon which the cause shall be ordered by the court,
or stipulated by the parties, to be heard.

RULE X.

SUBMISSION AND RESERVATION OF CAUSES.

Causes will not be received upon submission un-
til reached in the regular call of the calendar.

No reservation will be made of any of the first
eight causes, unless on account of sickness, or an
engagement elsewhere in the actual trial or argu-
ment of another cause commenced before the term
of this court, or other inevitable necessity, to be
shown by affidavit. Other causes may be reserved
upon reasonable cause shown, or by stipulation of
parties filed with the Clerk; but no cause shall be
so reserved by stipulation after the same has been
placed upon the day calendar.

Causes reserved for a day certain by stipulation,
when in order to be called, have priority among
each other according to the time of filing the stipu-
lations with the Clerk, and shall follow next in or-
der the undisposed of causes of the calendar for
the day previous. Default may be taken in them,
and they will, if passed, go down upon future cal-
endars, as if passed in the regular call.

No reserved cause, whether reserved generally
or for a particular day, will be called before its
number is reached on the regular call of the cal-
endar.

206
THE COURT OF APPEALS.
RULE XI.
MOTIONS AND APPEALS FROM ORDERS.

Motions, appeals from final orders in special pro-
ceedings, appeals from interlocutory judgments
overruling. or sustaining demurrers and appeals
from orders in actions and special proceedings cer-
tified to this court by the Appellate Divisions of the
Supreme Court, except orders granting a new trial,
may be noticed for and will be heard on the first
Monday of each session of the court, before taking
up the calendar. Original motions may be submit-
ted on any Monday.

Where notice has been given of a motion, if no
one shall appear to oppose, it will be granted as of
course.

If a motion be not made on the day for which it
has been noticed, the opposing party will be en-
titled, on applying to the court at the close of the
motions for that day, to a rule denying the mo-
tion, with costs.

RULE XII.

CALL OF CALENDAR.

Eight causes only will be called on any day, but
after such call causes ready on both sides will be
heard in their order. Any cause which is regular-
ly called and passed, without postponement by the
court for good cause shown at the time of the call,

207
THE COURT OF APPEALS.

will be placed on all subsequent calendars as if
the return had been filed on the day when it was
so passed.

Causes upon the calendar may be exchanged one
for another, of course, on filing with the Clerk a
note of the proposed exchange, with the numbers
of the causes, signed by the respective attorneys
or counsel. Upon all the subsequent calendars each
of said causes will take the place due to the date
of the filing of the return in the other.

In like manner, a cause not upon the calendar in
which an appeal to this court has been perfected
and the return duly filed with the Clerk, may be
exchanged, of course, for another cause upon the
calendar, on filing with the Clerk a note of the pro-
posed exchange, with the number of the cause on
the calendar, and the date of filing return in the
cause not upon the calendar, signed by ‘the re-
spective attorneys or counsel, and also a stipulation
of the attorneys or counsel in the cause not on the
calendar setting down the same for argument in
place of the calendar cause when reached, with the
same effect as if duly noticed.

- Upon all subsequent calendars, each of said
causes will take the place due to the date of the fil-
ing the return in the other.

208
THE COURT OF APPEALS.
RULE XIII.
TIME OF ARGUMENT.

In the argument of a cause not more than two
hours shall be occupied by counsel on either side,
except by the express permission of the court.

In the argument of an appeal from an order
not more than thirty minutes shall be occupied by
the appellant’s counsel, nor more than twenty-five
minutes by the respondent’s counsel, without ex-
press permission of the court.

RULE XIV.
PREFERRED CAUSES.

No causes are entitled to any preference upon
the calendar except such as is given by law or the
special order of the court.

Any party claiming a preference must so state
in his notice of argument to the opposite party
and to the Clerk; and he must also state the
ground of such preference, so as to show to which
of the preferred classes the cause belongs.

A preferred cause being once passed loses its pref-
erence.

RULE XV.
DEFAULTS.

Judgments of reversal by default will not be al-
lowed. When a cause is called in its order on the

209
THE COURT OF APPEALS.

calendar, if the appellant fails to appear and fur-
nish the court with the papers required, and argue
or submit his cause, judgment of affirmance by de-
fault will be ordered on motion of the respondent.
If the appellant only appears, he may either argue
or submit the cause.

When any cause shall be regularly called for ar-
gument, and no other disposition shall be made
thereof, the appeal shall be dismissed without costs,
and an order shall be entered accordingly, which
shall be absolute unless upon application made and
good cause shown, upon notice to the opposite
party within ten days, if the court is in session, and
if not, on the first motion day of the next session,
the court shall revoke said order and restore said

appeal.
RULE XVI.

REMITTITUR.

The remittitur shall contain a copy of the judg-
ment of this court and the return made by the Clerk
below, and shall be sealed with the seal and signed
by the Clerk of this court.

RULE XVII.

AFFIRMANCE BY DEFAULT.

When a judgment or order shall be affirmed by
the default of the appellant, the remittitur shall
not be sent to the court below, unless this court
shall otherwise direct, until ten days after notice

210
THE COURT OF APPEALS.

of the affirmance shall have been served on the at-
torney for the appellant. Service of the notice
shall be proved to the Clerk by affidavit, or by the
written admission of the attorney on whom it was
served.

RULE XVIII.

ENLARGING TIME — REVOKING ORDERS.

The time prescribed by these rules for doing any
act may be enlarged by the court or by any of the
judges thereof; and any of the judges may make
orders to stay proceedings, which, when served
with papers and notice of motion, shall stay the
proceedings, according to the terms of the order.
Any order may be revoked or modified by the
judge who made it; or, in case of his absence or
inability to act, by any of the other judges.

RULE XIX.
CALENDARS.

When a new Calendar is ordered by the Court, the
Clerk shall place thereon all causes in which no-
tices of argument, with proof or admission of serv-
ice, have been filed in his office; and, also, if or-
dered by the Court, all other causes in which the
returns have been filed in his office; and the causes
so put on the calendar by the direction of the Court
will be heard in their order as if regularly noticed.
THE COURT OF APPEALS.
RULE XxX.
MOTIONS FOR REARGUMENT.

Motions for reargument will only be heard on no-
tice to the adcerse party, stating briefly the ground
upon which a reargument is asked, and such mo-
tions must be submitted on printed briefs, stating
concisely the points supposed to have been over-
looked or misapprehended by the court, with prop-
er reference to the particular portion of the case,
and the authorities relied upon, and counsel will
not be heard orally.

RULES FOR THE ADMISSION OF ATTORNEYS AND
COUNSELORS-AT-LAW.

RULE I.

ADMISSION AND LICENSE.

No person shall be admitted to practice as an at-
torney or counselor in any court of record in this
State, without a regular admission to the bar and
license to practice granted by an Appellate Divi-
sion of the Supreme Court.

RULE II.

‘ADMISSION AFTER PRACTICING THREE YEARS IN
ANOTHER STATE OR COUNTRY, ETC.

Any person who has been admitted to practice,
and has practiced three years as an attorney and
212
THE COURT OF APPEALS.

counselor in the highest court of law in another
State, and any person who has thus practiced in
another country, or who, being an American cit-
izen and domiciled in a foreign country, has re-
ceived such diploma or degree therein as would
have entitled him, if a citizen of such foreign coun-
try, to practice law in its courts, may, in the dis-
cretion of an Appellate Division of the Supreme
Court, be admitted and licensed without an exam-
ination. But he must possess the other qualifica-
tions required by these rules, and must produce a
letter of recommendation from one of the judges
of the highest court of law of such other State
or country, or furnish other satisfactory evidence
of character and. qualifications.

RULE III.
PREREQUISITES TO ADMISSION ON EXAMINATION.

All other persons may be admitted and licensed
upon producing and filing with the court the cer-
tificate of the State Board of Law Examiners that
the applicant has satisfactorily passed the examina-
tion prescribed by these rules and has complied
with their provisions; and upon producing and filing
with the court evidence that such applicant is a per-
son of good moral character, which may be shown
by the certificate of the attorney with whom he
has passed his clerkship, or by some attorney in the
town or city where he resides, but such certificate

213
THE COURT OF APPEALS.

shall not be conclusive, and the court may make
further examination and inquiry.

RULE IV.

PREREQUISITES TO EXAMINATION BY STATE BOARD
OF LAW EXAMINERS; PERIODS OF LAW STUDY;
ADMISSION IN ANOTHER STATE OR COUNTRY.

To entitle an applicant to an examination as an
attorney and counselor, he must prove by his own
affidavit, to the satisfaction of the State Board
of Law Examiners:

First. That he is a citizen of the United States,
twenty-one years of age, stating his age, and a resi-
-dent of the State, and that he has not been exam-
‘ined for admission to practice and been refused
admission and license within three months imme-
diately preceding.

Second. That he has studied law in the manner
and according to the conditions hereinafter pre-
scribed for a period of three years, and that he is
the same person mentioned in his annexed prelim-
inary papers, except that if the applicant be a grad-
uate of any college or university, his period of
study may be two years instead of three; and ex-
cept also that persons who have been admitted as
attorneys in the highest court of original jurisdic-
tion of another State or country, and have re-
mained therein as practicing attorneys for at least
one year, may be admitted to such examination
after a period of law study of one year within this
State.

214
THE COURT OF APPEALS.
RULE V.

STUDY OF LAW; REGENTS EXAMINATION AND CER-
TIFICATE; VACATIONS; CLERKSHIP CERTIFICATE.

Applicants for examination shall be deemed to
have studied law within the meaning of these rules
only when they have complied with the following
terms and conditions, viz.:

1. The provisions for requisite periods of study
must be fulfilled by serving a regular clerkship in
the office of a practicing attorney of the Supreme
Court in this State after the age of eighteen years;
or after such age, by attending an incorporated
law school, or a law school connected with an in-
corporated college or university having a law de-
partment organized with competent instructors and
professors, in which instruction is regularly given;
or after such age, by pursuing such course of study,
in part by attendance at such law school, and in
part by serving such clerkship.

2. If the applicant be a graduate of a college or
university, he must have pursued the prescribed
course of study after his graduation; and if he be
a person admitted to the bar of another State or
country, he must have pursued his prescribed pe-
riod of study after having remained an attorney in
such other State or country for the period of one
year.

3. Applicants who are not graduates of a college
or university, or members of the bar as above pre-

215
THE COURT OF APPEALS.

scribed, shall, before entering upon the clerkship
or attendance at a law school herein prescribed, or
within one year thereafter, have passed an exam-
ination conducted under the authority and in ac-
cordance with the ordinances and rules of the Uni-
versity of the State of New York, in English com-
position, advanced English, first year Latin, arith-
metic, algebra, geometry, United States and Eng-
lish history, civics and economics, or in their sub-
stantial equivalents as defined by the rules of the
University, and shall have filed a certificate of such
fact signed by the secretary of the University with
the Clerk of the Court of Appeals, whose duty it
shall be to return to the person named therein a
certified copy of the same showing the date of such
filing. The regents may accept as the equivalent
of and substitute for the examination in this rule
prescribed either, first, a certificate properly au-
thenticated, of having successfully completed a full
year’s course of study in any college or university ;
second, a certificate properly authenticated, of hav-
ing satisfactorily completed a three years’ course of
study in any institution registered by the regents as
maintaining a satisfactory academic standard; or,
third, a regents’ diploma. The regents’ certificate
above prescribed shall be deemed to take effect as of
the date of the completion of the regents’ examina-
tion, as the same shall appear upon said certificate.

4. Attendance on a law school during a school
year of not less than eight months in any year shall

216
THE COURT OF APPEALS.

be deemed a year’s attendance under this rule; and
in computing the period of clerkship a vacation
actually taken, not exceeding two months in each
year shall be allowed as part of such year.

5. It shall be the duty of attorneys, with whom
a clerkship shall be commenced, to file a certificate
of the same in the office of the Clerk of the Court
of Appeals, which certificate shall in each case
state the date of the beginning of the period of
clerkship, and such period shall be deemed to com-
mence at the time of such filing, and shall be com-
puted by the calendar year.

6. The same period of time shall not be dupli-
cated for different purposes, except that a student
attending a law school as herein provided, and,
who, during the vacations of such school, not ex-
ceeding three months in any one year, shall pur-
sue his studies in the office of a practicing attorney,
shall be allowed to count the time so occupied dur-
ing such vacation or vacations as part of the clerk-
ship in a law office specified in these rules.

RULE VI.

PROOF OF COMPLIANCE WITH PRELIMINARY
REQUIREMENTS.

The State Board of Law Examiners, before ad-
mitting an applicant to an examination, shall re-
quire proof that the preliminary conditions pre-
scribed by these rules have been fulfilled; which
proof shall be made as follows, viz.:

217
THE COURT OF APPEALS.

1. That the applicant is a college graduate, by
the production of his diploma or certificate of grad-
uation under the seal of the college.

2. That he has been admitted to the bar of an-
other State or country, by the production of his li-
cense or certificate executed by the proper author-
ities.

3. That he has served a regular clerkship, in the
office of a practicing attorney of the Supreme Court
of this State, after the age of eighteen years, by pro-
ducing and filing with the board a certified copy
of the attorney’s certificate as filed in the office of
the Clerk of the Court of Appeals, and producing
and filing an affidavit of the attorney or attorneys
with whom such clerkship was served, showing the
actual service of such a clerkship, the continuance
and end thereof, and that not more than two
months’ vacation was taken in any one year.

4. The time of study allowed in a law school
must be proved by the certificate of the teacher or
president of the faculty under whose instructions
the person has studied, under the seal of the school,
if such there be, in addition to the affidavit of the
applicant, which must also state the age at which
the applicant began his attendance at such law
school, which proofs must be satisfactory to the
Board of Examiners.

5. That the applicant has passed the regents’ ex-
amination or its equivalent, must be proved by the
production of a certified copy of the regents’ cer-

218
THE COURT OF APPEALS.

tificate filed in the office of the Clerk of the Court
of Appeals, as hereinbefore provided.

6. When it satisfactorily appears that any di-
ploma, affidavit or certificate required to be pro-
duced has been lost or destroyed, without the fault
of the applicant, or has been unjustly refused or
withheld, or by the death or absence of the person
or officer who should have made it cannot be ob-
tained, the Board of Law Examiners may accept
such other proof of the requisite facts as they shall
deem, sufficient.

7. A law student whose clerkship or attendance
at a law school has already begun as shown by the
record of the Court of Appeals, or of any incorpo-
rated law school, or law school established in con-
nection with any college or university, may, at his
option, file or produce instead of the proofs re-
quired by these rules, those required by the rules
of the Court of Appeals adopted October 28, 1892.

RULE VII.

FILING CERTIFICATES NUNC PRO TUNC; CERTAIN
REGENTS’ CERTIFICATES VALIDATED.

When the filing of a certificate, as required by
these rules, has been omitted by excusable mistake,
or without fault, the court may order such filing
as of the proper date. All certificates heretofore
issued to law students by the Board of Regents
and founded upon equivalents instead of an actual

219
THE COURT OF APPEALS.

examination, are validated and made effectual, and
may be accepted as sufficient by the Board of Law
Examiners.

RULE VIII
STATE BOARD OF LAW EXAMINERS.

The State Board of Law Examiners shall be
paid as compensation, each the sum of two thou-
sand dollars per year, and in addition such further
sum as the court may direct, and an annual sum
not exceeding two thousand dollars per year shall
be allowed for necessary disbursements of the
board. Every applicant for examination shall pay
to the examiners a fee of fifteen dollars, which
shall be applied upon the compensation and allow-
ance above provided, and any surplus thereafter
remaining shall be held by the treasurer of the State
Board of Law Examiners and deposited in some
bank, in good standing, in the city of Albany, to
his credit and subject to his draft as such treasurer
when approved by the Chief Judge. The exami-
nations held by such State Board of Examiners
may be conducted by oral or written questions and
answers, or partly oral and partly written, but
shall be as nearly uniform in the knowledge and
capacity which they shall require, as is reasonably
possible. An applicant who has failed to pass one
examination cannot again be examined, until at
least three months after such failure.

220
THE COURT OF APPEALS.
RULE IX.

TIMES AND PLACES OF HOLDING EXAMINATIONS —
DEPARTMENT.

The State Board of Law Examiners shall hold
at least one examination in each judicial depart-
ment, at the city or village in which the Appellate
Divisions of the Supreme Court are held, between
the tenth day of June and the twentieth day of
July in each year, and one examination in each de-
partment at the places above named, during the
month of January in each year. They may ap-
point other times and places for additional exam-
inations, and may hold some or all of such addi-
tional examinations concurrently with the regular
or annual examinations of any law school in this
State, and any applicant entitled to be examined
may be so examined in any department, whether
a resident therein or not.

RULE Xs
MILITARY SERVICE.

In all cases where, after the applicant shall have
commenced his period of law study as provided by
these rules, he has engaged in the military or naval
service of the United States of America, in its late
war with Spain, the time of such service shall be
included as a part of the period of study required
by Rule IV. The proof of compliance with pre-

221
THE COURT OF APPEALS.

liminary requirements under Rule VI, with re-
spect to such service, shall be made to the satisfac-
tion of the Board of Law Examiners.

222
THE COURT OF APPEALS.

TABLE OF CASES CITED.

A.

PAGE
Abbey vs. Wheeler, 170 N. Y. 122.........- 121
Adams vs. Elwood, 168 N. Y. 678 ....... 140
Adams vs. Fox, 27 N. Y. 640...........4-: 123
Adams vs. Irving Nat. Bank, 116 N. Y. 606. 47
Adams vs. Roscoe Lumber Co., 159 N. Y. 176 106
Adams vs. Westbrook, 89 N. Y. 152...... 52
Albring vs. N. Y. C. & H. R. R. R. Co., 166

ING: Mig 2B Bind olacas: oe wea a aideelery & 34, 35
Aldridge vs. Aldridge, 120 N. Y. 613..... 14, 47
Allard vs. Greasert, 61 N. Y. 4............ 48
Allen vs. Meyer, 73 N. Y. 1... .. eee ee eee 68
Allen vs. Stevens, 161 N. Y. 122.......... 50
Alling vs. Fahy, 70 N. Y. 571. ........... 62
Allison vs. Welde, Matter of, 172 N. Y. 421. 138
Altman vs. Hofeller, 152 N. Y. 492........ 133
Amherst College vs. Ritch, 151 N. Y. 282....

Be cn ee eee eee rn sae ee 21, 87, 88, 93
Anderson vs. Anderson, 112 N. Y. 104...... 67
Anderson vs. Daley, 159 N. Y. 146. ....... 119
Architectural Iron Works vs. City of Brooklyn,

OS Nc Vi O62. ws ccerhecueeeeeeseos es 186
Armstrong vs. Dubois, 90 N. Y. 95...46, 86, 94
Atlantic Ave. R. R. Co. vs. Johnson, 134 N.

Mio BU Ga Gackeashu dca iietavanely elaseoeti dea Se aay eeewse © 48
THE COURT OF APPEALS.
PAGE
Attorney-General, Matter of, 155 N. Y. 144..
ve er ee ee eer 70, 140

Nt SES eae asta n eta eon eee 60, 143
Auchmuty, Matter of, 88 N. Y. 622........ 143
Aultman Taylor Co. vs. Syme, 163 N. Y. 54. . 63
Ayres vs. D., L. & W. R. R. Co., 158 N. Y.

BoA ob pianos awnte same woun see 102, 103
B.

Bachrach vs. Man. R’y Co., 154 N. Y. 168... 109
Baer, Matter of, 147 N. Y. 348.......... 56
Bailey, Matter of, 85 N. Y. 629......... 188
Baird vs. Mayor, 74 N. Y. 382. .........-. 60
Baird vs. Mayor, 96 N. Y. 567............ 14
Baker vs. Home Life Ins. Co., 63 N. Y. 30. 63
Baker vs. Spencer, 47 N. Y. 562..........- 44
Baldwin, Matter of, 158 N. Y. 713. ....... 64
Baldwin vs. McArthur, 17 Barb. 414. ...... 5

Baldwin’s Bank vs. Butler, 133 N. Y. 564.... 50
Bank of China, Japan and the Straits vs. Morse,

TOS Nc Vira 8 oj dam oie ee itera 34
Bank of Genesee vs. Spencer, 18 N. Y. 150.63, 144
Bank of Metropolis vs. Faber, 150 N. Y. 200. 170
Bank of N. Y. vs. Weston, 172 N. Y. 258. . 103
Bank of State of N. Y. vs. Southern Nat. Bk.,

Cot DN Gs ode on eee chonky eas 104
Barker vs. Cocks, 50 N. Y. 689............ 122
Barker vs. White, 3 Keyes 495............ 50
Barnard vs. Gantz, 140 N. Y. 249.......... 14

224
THE COURT OF APPEALS.

PAGE
Barnes vs. Brown, 130 N. Y. 372.......... 54
Bartlett vs. Goodrich, 153 N. Y. 421........ 88
Bartlett vs. McNeill, 60 N. Y. 43.......... 63
Bassett vs. French, 155 N. Y. 46........... 64
Bate vs. McDowell, 97 N. Y. 646. ......... 68
Bates vs. Holbrook, 171 N. Y. 460...... 98, 154
Batterman vs. Finn, 40 N. Y. 340....... 139, I41
Baxter vs. McDonnell, 154 N. Y. 432....... 170
Beards vs. Wheeler, 76 N. Y. 213. .......... 57

Beck vs. Catholic University, 172 N. Y. 387. 41
Bedlow vs. Floating Dry Dock Co., 112 N. Y.

oo a ne ee Peer eee ey ere rere Te 85
Beggs, Matter of, 67 N. Y. 120.055.0000 63
Belknap vs. Waters, 11 N. Y. 477....... 115, 139
Beman vs. Todd, 124 N. Y. 114............ I51
Benedict vs. Arnoux, 154 N. Y. 714..... 18, 131
Bentiett vs, Bates, 64 N, Vo S64, eu xyeckiguxn 40
Best vs. Man. R’y Co., 125 N. Y. 697....... 47
Betts, Matter of, 55 NN. Y. 600. «¥iaieeeuws 146
Bigelow vs. Legg, 102 N. Y. 652........... 40
Bingham, Matter of, 127 N. Y. 206........ 5
Bini vs. Smith, 161 N. Y. 720. ............. 15
Binsse vs. Wood, 37 N.Y. 528. 2. aecasses oe 47
Birge vs. Berlin Iron Bridge Co., 133 N. Y.

ATT Seeders Cee ORT AR A RS REN Ee Le eae 167
Birnbaum vs. May, 170 N. Y. 314......... 188
Bitter vs. Rathman, 61 N. Y. 512.......... 79
Blady vs. Rothschild, 170 N. Y. 574. ....-. 164
Blake vs. Lyon Mfg. Co., 75 N. Y. 611. ... 186
Blaschko vs. Wurster, 156 N. Y. 437........ 170

225
THE COURT OF APPEALS.

PAGE

Bliss vs. Hoggson, 84 N. Y. 667........... 187
Bloom vs. Nat. Savings & Loan Co., 152 N.

Ve DTA ac eS owed Be dnan Ace valaclat ncaa 14, 128
Bloom vs. Nat. Savings & Loan Co., 81 Hun

120 ceiaeewe nee ceca e Rages e ae ee 128

Blossom vs. Estes, 84 N. Y. 614. .......... 68

Bly vs. E.G. E, I. Co., 172 N.Y. 5. ss: 21, 88

Board of Education, Matter of, 169 N. Y. 456 139
Board of Street Opening, Matter of, 133 N. Y.

AB Ore tafe cain ata as tend Stig cg Anes oe. cau aeee 146
Board of Street Opening, Matter of, 111 N.

Vs wbOl- eusntrn ite atene ue waits 146
Board of Underwriters vs. Nat. Bk., 146 N. Y.

OA) sii Savie sacatay wishicbas ee sobvasats seek wasn ehtar 133
Bohnet vs. Mayor, 150 N. Y. 279.......... 51
Bomeisler vs. Forster, 154 N. Y. 229...... 88, 93
Bonnell vs. Griswold, 89 N. Y. 127........ 46
Bossuett vs. R. W. & O. R. R. Co., 131 N. Ye

BOS sais e se ae aa leila Peace een wees ROA 64, 142
Bowery B’k vs. Richard, 63 N. Y. 631....... 65 °
Boyd vs. Gorman, 157 N. Y. 365......... I, 164
Brady, Matter of, 69 N. Y. 215............ 145
Brayton vs. Sherman, 119 N. Y. 623....... 44
Brenner, Matter of, 170 N. Y. 185........ 59, 138
Briggs vs. Waldron, 83 N. Y. 582. ......... 78
Brinkley vs. Brinkley, 56 N. Y. 192. ........ 89
Brokaw vs. Duffy 165 N. Y. 151. .......... 98
Bronk vs. N. Y. & N. H. R. R. Co., 95 N. Y.

CFD hud e ENS CRE ER Ree Ewes 3
Brousseau vs. Tilyou, 169 N. Y. 599. ...... 109

226
THE COURT OF APPEALS.

PAGE
Brownell vs. Ruckman, 85 N. Y. 648....... 67
Bryant vs. Thompson, 128 N. Y. 407....... 181
Buckingham vs. Dickinson, 54 N. Y. 682... 63
Buell vs. Van Camp, 119 N. Y. 160. ....... 69

Buffalo & Landcaster Land Co. vs. Bellevue
Land & Improvement Co., 165 N. Y. 247 18
Buffalo Savings B’k vs. Newton, 25 N. Y. 160. 60

Bullock vs. Mayor, 99 N. Y. 654.........-. 40
Burgess vs. Simonson, 45 N. Y. 225........ 4I
Burnap vs. Nat. B’k, 96 N. Y. 125. ...21, 44, 86
Bush vs. O’Brien, 164 N. Y. 205. ....... 180
Butler, Matter of, tor N. Y. 307............ 66

Butler vs. Mail & Ex. Pub. Co. 171 N. Y. 208. 102
Byrnes vs. City of Cohoes, 67 N. Y. 205... 80

C.
Caldwell vs. N. J. Steamboat Co., 47 N. Y. 283 55
Calkin vs. Man. Oil Co., 65 N. Y. 557...... 67
Callahan, Matter of, 153 N. Y. 51.......... 142
Cambridge Valley Nat. B’k vs. Lynch, 76 N.

Nee GIA scelawititieia-¥-2 dace aca a A Rae 116
Campbell vs. Page, 50 N. ¥. 658.606. +.0 20 50
Campbell vs. Rockwell, 168 N. Y. 632....... 140
Canda vs. Totten, 1597 N, Y. 283... 5.00.00. 29
Candee vs. Lord, 2 N. Y. 269.............. 59
Caponigri vs. Altieri, 164 N. Y. 614. ........ 34
Caponigri vs. Altieri, 165 N. Y. 255........ 36
Carpenter vs. Taylor, 164 N. Y. 180. ...103, 105
Carleton vs. Darcy, 75 N. Y. 375....+-++00> 66
Caruthers, Matter of, 158 N. Y. 131. ....... 178

227
THE COURT OF APPEALS.

PAGE
Cashman vs. Reynolds, 123 N. Y. 138..--. 63
Cassidy vs. McFarland, 139 N. Y. 201...... 65
Cassidy vs. Uhlman, 170 N. Y. 505........ 41
Castleman vs. Mayer, 168 N. Y. 354....... 41
Castoriano vs. Dupe, 145 N. Y. 250. ...... 67
Catlin ya. Grisler, 57 WN, Wo. 264 news yvonne 119
Catlin vs. Pond, to1 N. Y. 649. ........ 42, 50
Catlin vs. Ricketts, 91 N. Y. 668........... 68
Chapman, Matter of, 162 N. Y. 456........

SAS ch i St a Tachi 30, 74, 142, 137
Chapman vs. Comstock, 134 N. Y. 509...... 33
Chittenden vs. Missionary Society, 8 How. Pr.

BOF cstagehessanweSeonne yeh iues 119

City of Johnstown vs. Wade, 157 N. Y. 50... I41
City of Niagara Falls vs. N. Y.C. & H.R. R.

R. Co., 168 N. Y. 610.............4. 88, 98
Claflin vs. Baere, 80 N. Y. 646. ........... 68
Clark vs. Brooks, 2 How. Pr. N. S. 385. ... 119
Clarke vs. Lourie, 82 N. Y. 550......... 69, 70
Clark vs. Nat. Shoe & Leather Bank, 164 N.

AOS a Psd oh eae ea new eees 98
Clemans vs. Supreme Assembly R. S., 131 N.

We Ae: ee hingreereueseesaenwn 87, 94, 95
Clyde vs. Rogers, 87 N.Y. 626.4 <05.008es%s 59
Coatsworth, Matter of, 160 N. Y. 114. ....... 171
Coatsworth vs. Lehigh Valley R. R. Co., 156

Nu Ye G40 oie nsckine skaaiesuwke seen 171
Cochrane vs. Ingersoll; 73 N. Y. 613........ 65
Coffin vs. Grand Rapids Hydraulic Co., 136

Ni WenOO 5: satel abet aes gies tears 54
THE COURT OF APPEALS.

PAGE
Cohn vs. Baldwin, 141 N. Y. 563........ 64, 70
Cohn vs. Goldman, 76 N. Y. 284. ......... 47
Collier vs. Collins, 192 N.Y. 90. <2ess exaas 36
Colman vs. Dixon, jo N. ¥.572.......0+..4 59
Colonial City Traction Co. vs. Kingston R.

Bi COm, £94; DAVOS wei eas tex eeewes 192
Colwell vs. Chapter General of America, 167

Wipe NOL cre tasta Sige Gina aenee. eae 109
Commercial Bank vs. Sherwood, 162 N. Y.

BIO og sate female tases 2, 82, 161, 162, 163, 169
Commissioners of Central Park, Matter of, 50

No Ys 403 wstaveruiae vara liaede comes 146
Commonwealth Ins. Co. vs. Bowman, go N. Y.

O54 ies wadueneuecca-g Ween eee deka eee 61
Conaughty vs. S. N. Bk., 92 N. Y. 401. .... 51
Concklin vs. Taylor, 68 N. Y. 221......... 57
Conklin vs. Snider, 104 N. Y. 641. ....... 153
Conners vs. Walsh, 131 N. Y. 590..... save. 85
Conselyea vs. Blanchard, 103 N. Y. 231..... 46
Consolidated Electric Storage Co. vs. Atlantic

Trust Co., 161 N. Y. 605........ 89, 90, 98
Consolidated Ice Co. vs. Mayor, 166 N. Y. 238 98
Converse vs. McArthur, 17 Barb. 410....... 5
Cook vs. Rindskopf, 105 N. Y. 476. ........ 29
Cooke vs. Underhill Mfg. Co., 138 N. Y. 610. 34
Cooper, Matter of, 22 N. Y. 67. .......... 139
Cooper, Matter of, 03 N: Yu 507. sesenss as 48
Cooper vs. Beecher, 109 N. Y. 609........ 60
Corwin, Matter of, 195 N.Y. 245 ene. s iss 52
Cosselmon vs. Dunfee, 172 N. Y. 507. ...... 54

229
THE COURT OF APPEALS.

PAGE
Courtney vs. Barker, 60 N. Y. 1. .......505 34
Cowdin vs. Teal, 67 N. Y. 581.......+-+5- 186
Cowee vs. Cornell, 75 N.Y. Qlexeisweeness 14
Cowenhoven vs. Ball, 118 N. Y. 231........ 80
Cox vs. Stokes, 156 N. Y. 4Q1.........06- 46
Crane vs. Baldwin, 55 N. Y. 256..........- 14
Crane vs. Stiger, 58 N. Y. 625............ 61
Crim vs. Starkweather, 136 N. Y. 635...... 40
Critten vs. Chemical Nat. B’k, 171 N. Y. 219.

Sis ASN OE SERA RMR Bee ee Semel 88, 89
Crocker vs, -Gollner, 135, N. ¥. G02. .540% e504 56
Cronin vs: Lord, 161 N.Y. 90. oc. s.0e0s ce 102
Crosby vs. Stephan, 97 N. Y. 606......... 143
Croveno vs. Atlantic Ave. R. R. Co., 150 N.

NGI BBG aittin Seed poet eh Re Meleletenle 2, 158
Cruger vs. Douglass, 2 N. Y. 571. .......4.. 119
Cudahy vs. Rhinehart, 133 N. Y. 248....... 29
Culliford vs. Gadd, 135 N. Y.-6326 awe es. cae 186
Cushman vs. Brundrett, 50 N. Y. 296. ....60, 70

D.
Dalrymple vs. Hunnum, 54 N. Y. 654....... 49

Dalzell vs. L. I. R. R. Co., 119 N. Y. 626.... 108
Dannhauser vs. Wallenstein, 169 N. Y. 199..

ce breaspota ah heathaal ried Merl an erdccielta dS aig 28, 88, 93
Darling vs. Brewster, 55 N. Y. 667. ....... 51
Davies, Matter of, 168 N. Y. 89....70, I71, 173
Davis vs. Cornue, 151 N. Y. 172......... 169
Davis vs. Leopold, 87 N. Y. 620......... 29
Davis vs. Mayor, 14 N. Y. 506............ 54

230
THE COURT OF APPEALS.

PAGE
Davis vs. Spencer, 24 N. Y. 386. .......... 41
Day vs. Town of New Lots, 107 N. Y. 148. 48
Dayton-vs; Borst, 30 N. YoAeSeusnseaua ese 40
DeCamp, Matter of, 77 Hun 480.......... 146
DeCamp, Matter of, 151 N. Y. 551........ JI
DeCamp vs. Thompson, 159 N. Y. 444...... 57
Delaware & Hudson Canal Co., Matter of,

69 Ni Va 200s ssccs he ywabiwene bape we areys 146
Del., L. & W. R. R. Co. vs. Burkhard, 109 N.

WiOA By artis once Gn eee geet ed 128, 129
Dennerlein vs. Dennerlein, 111 N. Y. 578... 60
Depew vs. Depew, 56 N. Y. 657. .......... 62
Derleth vs. DeGraff, 104 N. Y. 661. ....... 128
Devlin vs. Greenwich Saving Bank, 125 N. Y.

PaO tetas Ghee wel eee emek as 14
Devlin vs. Hinman, 161 N. Y. 155........ 170
Deyo vs. Moss, 144 N. Y. 216. ........... 62
Dinsmore vs. Adams, 66 N. Y. 618. ....... 62
Direct United States Cable Co. vs. Dominion

Tel. Co., 84. Ni Ys 15 3e2 0000 ces weewws 72
Dodge vs. Cornelius, 168 N. Y. 241........ 47
Dodge vs. Mann, 85 N. Y. 643............ 34
Donnelly vs. City of N. Y., 54 App. Div. 155.. 164
Donovan vs. Clark, 138 N. Y. 631........ 79
Dorchester vs. Dorchester, 121 N. Y. 156.... 29
Douglass vs. Haberstro, 82 N. Y. 572..... 64, 69
Downing vs. Kelly, 48 N. Y. 433. ......... 15
Dows vs. Congdon, 28 N. Y. 122.......... 60
Dr. David Kennedy Co. vs. Kennedy, 165 N.

We SGo sus sawn eewweereweeees 23, OF
THE COURT OF APPEALS.
PAGE
Drake vs. N. Y. Iron Mine, 156 N. Y. 90. 43, 79
Dunham vs. Townshend, 118 N. Y. 281. ... 48

Durant vs. Abendroth, 69 N. Y. 148........ 80
Durland vs. Durland, 153 N. Y. 67. ....... 152
Duryea vs. Fuechsel, 145 N. Y. 645. .....-- 180

Duryea vs. Vosburgh, 121 N. Y. 57........

a tree elon eg Oreste Se aleans teealat wal oe oe 34, 78, 80, 127
Dwight vs. Germania Life Ins. Co., 84 N. Y.

AQ? eyesore Lae ee eR Bae eae 64
E.
Eames Vacuum Brake Co. vs. Prosser, 157 N.

Vs 280 se eeeds chick ge dh cadie eae 40, 41
Edgecomb vs. Buckhout, 146 N. Y. 332. .. 34
Edson vs. Parsons, 165 N. Y. 555. ......--. 18
Einstein vs. Climax Cycle Co., 152 N. Y. 648. 140
Ellis vs. Rice, 77 N. Y. 610..........-..5- 69
Elwell vs. Johnson, 74 N. Y. 80........... 118
Elwood vs. Roof, 82 N. Y. 428............ 57
Enos vs. Thomas, 5 How. Pr. 359.......... 59
Equitable Life Assur. Soc. vs. Stevens, 63 N.

Wis SQA cer el hae seeiacis waar s Send tated 72

Erie R. R. Co. vs. Steward, 170 N. Y. 172. . 18
Essex County Bank vs. Russell, 29 N. Y. 673. 80

F,
Fairchild, Matter of, 151 N. Y. 359........ 130
Fairchild vs. Edson, 154 N. Y. 199. ...... 18, 41
Fallon vs. Brooklyn R. R. Co., 56 N. Y. 652. 50
Farleigh vs. Cadman, 159 N. Y. 169........ 131

232
THE COURT OF APPEALS.

PAGE
Farmer vs. Seabury, 135 N. Y. 50.......... 29
Farmers’ L. & T. Co. vs. Bankers’ & M. Tel.
CG OO) Wa: V9 BAe es i BO Gs Sachs 62
Fealey vs. Bull, 16% N, Ve 207i xereos se aaue 42
Ferris vs. Ferris, 56 N. W614, sas vwar swaes 62
Finlay vs. Chapman, 119 N. Y. 404........ 59
First Nat. B’k vs. Chalmers, 144 N. Y. 432.. 94
Fisher ys. Hersey, 78 Ne Vn 387. eee5: sao 61
Flandrow vs. Hammond, 148 N. Y. 129.... 47
Fleischman vs. Bennett, 79 N. Y. 579....... 62
Fleischman vs. Stern, go N. Y. I10........ 60
Folger vs. Fitzhugh, 41 N.Y. 228........... 61
Forrest vs. Forrest, 25 N. ¥. 501.......... 49
Port ve. Bard, 2 IN. Yo Ae. o sinceiae nee wns 62
Fosdick vs. Town of Hempstead, 126 N. Y.
O52 wavnsey eeceeedwae edd end Bees IQI, 192
Foster vs. Bookwalter, 152 N. Y. 166. ..13, 152
Foster vs. Persch, 68 N. Y. 400......... 29

Fox vs. Matthiessen, 155 N. Y. 177. .36, 71, 127
Franklin Banknote Co. vs. Mackey, 158 N.

Na OG 3 ieee cakes enemy oe We vara alene nas 190
Freel vs. County of Queens, 154 N. Y. 661..

Acs INGA ne GAN pate abated a8 ae Sie 53, 132, 154
Freeman vs. Grant, 132 N. Y. 22......... 54
French vs. Merrill, 27 App. Div. 612........ 5
Friedman, Matter of, 82 N. Y. 609. ...... 144

Fritz vs. Tompkins, 168 N. Y. 524. ..23, 28, 41
Fuller vs. City of Mt. Vernon, 171 N. Y. 247. 98
Fulton Fire Ins. Co. vs. Baldwin, 37 N. Y. 648. 66

233
THE COURT OF APPEALS.

G. PAGE
Gage, Matter of, 141 N. Y. 112. ......-00- 180
Gale vs. N. Y. C. & H. R. R. R. Co., 76 N.

Ne SOAs ts abisematemaamcumee unanas are 61
Galle vs. Tode, 148 N. Y. 270.......6.55 24, 94
Gambling vs. Haight, 58 N. Y. 623. ........ 62
Gannon vs. McGuire, 160 N. Y. 476. ...... 49
Gardner vs. N. Y. M. S. & L. Ass’n, 67 App.

Dive S141 wnt 2S EE ee eae oe 89

Genet vs. Del. & H. C. Co., 163 N. Y. 173... 98
German Am. B’k vs. Morris Coal Co., 74 N.

No 5S) eiaviaies seme secinee ee ee eee 51
Germania Savings Bank vs. Suspension Bridge,

TE OWING Yer 300 wre wiraeu eee Ke eae 185
Getty vs, Spalding, 58 N. Y. 636. ......00+ 62
Gidley vs. Gidley, 65 N. Y. 169............ 79
Gillies vs. Improvement Co., 147 N. Y. 420... 47
Gillig vs. Treadwell Co., 151 N. Y. 552..... 140
Glenney vs. Stedwell, 64 N. Y. 120,....... 59
Godfrey vs. Moser, 66 N. Y. 250. .......... 153
Godfrey vs. N. Y. C. & H. R. R. R. Co., 161

ING Ys FOO cata signe aa Pham 103
Good vs. Daland, 119 N. Y. 153...........- 183
Goodell vs. Harrington, 76 N. Y. 547..... 61
Goodfellow vs. Mayor, 100 N. Y. 15........ 40

Goodsell vs. W. U. Tel. Co., 109 N. Y. 147.. 133
Goodwin vs. Conklin, 85 N. Y. 21. 33, 132, 133

Gotthelf vs. Stranahan, 138 N. Y. 345....... 55
Grab, Matter of, 157 N. Y. 69. ........... 141
Granger vs. Craig, 85 N. Y. 619. .......... 59

234
THE COURT OF APPEALS.

PAGE
Grannan vs. Westchester Racing Ass’n, 153 N.

YV AAQ: pei oesay ev eegee eee gen nts 169, 170
Grant vs. Griswold, 82 N. Y. 569........... 63
Gray vs. Board of Supervisors, 93 N. Y. 603.. 153
Gray vs. Fisk; 53 N: Yo 630. 220s .ae eas vs 60
Gray vs. Man. Ry. Co., 128 N. Y. 499. ... 53
Green, Matter of, 154 N. ¥. 223. scsesees.0 99
Greenleaf vs. Brooklyn R. R. Co., 102 N. Y.96 64
Gridley vs. Daggett, 6 How. Pr. 280. ...... 179
Griffen vs. Manice, 166 N. Y. 188. ......... 103
Griggs vs. Day, 158 N. Y. 1. .........000. 18
Groves vs. Rice, 144 N. Y. 227. ........ 86, 94
Guarantee Trust & S. D. Co. vs. Phila, R.

& N. E.R. R. Co., 160 N. Y. 1.168, 183, 184

H.

Haebler vs. Bernhath, 115 N. Y. 459. ...... 68
Hale vs, Clauson, 60 IN. Ys 980sssxewe sy sae 61
Hall, Matter of, 164 N. Y. 196. ............ 98
Halliburton vs. Clapp, 149 N. Y. 183...... I, 157
Halpin vs. Phoenix Ins. Co., 118 N. Y. 165.. 44
Halsey, Matter of, 93 N. Y. 48...... 59, 60, 142
Hamilton vs. Third Ave. R. R. Co., 53 N. Y.

Be Cra aiepitaryrarc ean o nc see eo eurelase wares 55
Hamlin. vs. Sears, 82 N. Y, 327. o..c0sacs 29
Hammond vs. Nat. Life Ass’n, 168 N. Y. 262. 140
Hannigan vs. Allen, 127 N. Y. 639. ....... 29
Hanover Fire Ins. Co. vs. Germania F. Ins. Co.,

DOG Ny Me OR ies aman bee area eaes 51
THE COURT OF APPEALS.

PAGE

Hanover Fire Ins. Co. vs. Tomlinson, 58 N.
ANGA2IG Sasa dciotliaacna a segs amen a aia 36
Harrington vs. Bruce, 84 N. Y. 103.......- 65
Harriott, Matter of, 145 N. Y. 540......... 138
Harris vs. Burdett, 73 N. ¥..096. scae0.00es 34
Harris vs. Clark, 4 How. Pr. 78. .......... 119

Harroun vs. Brush El. Co., 152 N. Y. 212... 83
Hasbrook vs. Kingston B’d of Health, 3 Keyes,

BSONzG oS pw Seiee Gs A eee rian hs 68
Hatch, Matter of, 74 N. Y. 611..........-. 57
Hatch vs. Cent. Nat. B’k, 78 N. Y. 487...... 61
Hatfield vs. King, 184 U. S. 165...........- 179
Hauxhurst vs. Ritch, 119 N. Y. 621........ 50
Hay vs. Knauth, 169 N. Y. 208...... 84, 95, 98
Hayden vs. Florence S. M. Co., 54 N. Y. 221. 50
Hayes vs. Ball, 72 N. Y. 418............. 50
Hayes vs, Nourse, 107 N.Y. 877.00 405 00% 181
Hays vs. Miller, 70 N. Y. 112..........-. 94
Hazleton vs. Wakeman, 3 How. Pr. 357. .... 61
Health Dep’t vs. Dassori, 159 N. Y. 245. 15, 188
Health Dep’t vs. Purdon, 99 N. Y. 237. ..... 46
Health Dep’t vs. Weekes, Matter of, 22 App.

Div TO. adits he cnmves ants raw ens 89, 100
Healy vs. Clark, 120 N. Y. 642............ 41
Hearst vs. Shea, 156 N. Y. 169............ 171
Hecla Powder Co. vs. Sigua Iron Co., 157

No Ys 437) sctavsiaa ene er eee eee nena 78
Heishon vs. Korick L.. I. Co., 77 N. Y. 278... 59
Heller vs. Cohen, 154 N. Y. 299......... 55, 131
Hemmens vs. Nelson, 138 N. Y. 517........ 42

236
THE COURT OF APPEALS.

PAGE
Henavie vs. N. Y. C.& H.R. R. R. Co., 154
a Were ein virus anwesc ene eraces 33
Hendrickson vs. City of N. Y., 160 N. Y. 144. 132
Henry vs. Alten, 147 No. Vi 446.055.4060 % 189
Herrington vs. Robertson, 71 N. Y. 280.... 50
Hewlett vs. Elmer, 103 N. Y. 156. ..3, 40, 41

Hewlett vs. Wood, 67 N. Y. 394. ...... 71: 72
Hilton vs. Ernst, 161 N. Y. 226.....90, 92, 98
Hinckel vs. Stevens, 165 N. Y. 171..... 14, 28
Hirshfeld vs. Fitzgerald, 157 N- Y. 166. ... 16
Hiscock vs. Harris, 80 N. Y. 402.........- 155
Hitchcock vs. Peaslee, 145 N. Y. 547....... 61
Hobart vs. Hobart, 85 N. Y. 637. s2s:.2»2% 187
Hoes vs. Edison General Electric Co., 150 N.

Mes SO resis tached Gahan a lera' git ee We eaten 2, 38
.Hodges vs. Tenn. Ins. Co., 8 N. Y. 416...... 54
Holbrook, Matter of, 99 N. Y. 549. ....... 49
Hollahan vs. Met. St. R’y Co., 73 App. Div.

LOQy eins paw eee at wee aaa ee 48
Hollister vs. Mott, 132 N. Y. 18...... 87, 94, 95
Hollister vs. Simonson, 170 N. Y. 357....... 121
Holloway vs. Stephens, 58 N. Y. 670........ 59
Holme vs, Stewatt, 155 D.. ¥. 608s cxvexes 135
Holyoke vs. Adams, 59 N. Y. 233....+...-- 62
Hopkins vs. Clark, 158 N. Y. 299...... 43, 78
Horsfalls, Matter of, 77 N. Y. 514. ....... 144
Houghkirk vs. Del. & H. C. Co., 92 N. Y. 219. 14
Howell vs. Hettrick, 160 N. Y. 308. ....... 131
Howell vs. Mills, 53 N. Y. 332. ....61, 79, 131

237
THE COURT OF APPEALS.

PAGE
Huda vs. American Glucose Co., 151 N. Y.
BAO seetineveus pe eaeeaeeo ica eee. 82, 159
Hudson vs. Rome, O. & W. R. R. Co., 145 N.
Vou AO8 sa tana dines ouialeca aa dees 4I, 42
Hudson River Tel. Co. vs. Watervliet, etc., R.
R.:Co,,. 120 Ne Ys 207 scsssanriccen 67
Huerzeller vs. C. C. T. R. R. Co., 139 N. Y.
FOO 625 688 BEDE ca SER ea Ce ae 79
Hulbert Bros. Co., Matter of, 160 N. Y. 9.136, 139
Hunt vs. Chapman, 63 N. Y. 333........ 79, 128
Hunt vs. Hunt, 171 N. Y. 396. ........ 90, 92
Hurlburt vs. Hurlburt, 128 N. Y. 420....... 55
Husted vs. Thomson, 158 N. Y. 328........ 131
Husted vs. Van Ness, 158 N. Y. 104........ 50
Hutchinson vs. Wood, 153 N. Y. 329. ...... 109
Hyatt vs. Dusenbury, 106 N. Y. 663. ...... 181
1.
Ingersoll vs. Bostwick, 22 N. Y. 425........ 78
Inglehart vs. Thousand Island Hotel Co., tog
ING Ys AG Aes een reiahs Gothia cchae i aien esd 29
Isham vs. Post, 168 N. Y. 531............ 46
Israel vs. Man. R’y Co., 158 N. Y. 624.%......
eater oin ates 46, 79; 85
Ives vs. Ellis, 169 N. Y. 85. ...........00. 104
J:
James vs. Cowing, 82 N. Y. 449........ 24, 85
Jenkins vs. Putnam, 106 N. Y. 272. ....... 59
Jennison vs. Citizens Saving B’k, 85 N. Y.
BAS de ossisna ewe taat es micemaiies pase ave 36
THE COURT OF APPEALS.

PAGE
Jerome vs. Queen City Cycle Co., 163 N. Y.

SG cei rang eeeeudeussteectedaiereex 41
Jetter, Matter of, 78 N. Y. 605......... II5, 116
Jewelers Merc. Agency vs. Rothschild, 155 N.

Mes BSG aa ape arae ea cee ReRE eh 139, 141
Johnson vs. N. Y. C. & H. R. R. R. Co., 173

INE NGS Bi passat acinar ht canna Te hetieapreet on oles: 42
Johnson vs. Union S. & S. Co., 125 N. Y. 720.

se Reavees Gian ennek ware anwhm es sate TEOs7 122)
Johnson vs. Whitlock, 13 N. Y. 344........ 188
Judson vs. Central Vermont R. R. Co., 158

Di IG OF Pian ois sche ate uk hacaea aasat acs 34
Jung vs. Keuffel, 144 N. Y. 381......... 42, 50

K.
Kain vs. Delano, 11 Abb. Pr. N. S. 29. ... 65
Kamp vs. Kamp, 59 N. Y. 212............ 62
Kaplan vs. N. Y. Biscuit Co., 151 N. Y. 171.

Bs aL ND ta SS ee I Uh p teeta eg Me Os ae a 82, 158
Keefe, Matter of, 164 N. Y. 352..... 28, 30, 74
Kelsey vs. Sargent, 104 N. Y. 663. ......... 123
Kelso vs. Lorillard, 85 N. Y. 177. .......... 56
Kennedy vs. Kennedy, 73 N. Y. 369........ 65
Kennedy vs. Porter, 109 N. Y. 526.......... 85
Kenney vs. City of Cohoes, 100 N. Y. 623.... 40

Kennicutt vs. Parmalee, 109 N. Y. 650. ...36, 50
Kenyon vs. N. Y. C.& H. R. R. R. Co., 76

NG NG 607 Sawer ieieessethewssaauees 188
Keough vs. Albany & T. Steamboat Co., 171
ING M5 035 Ger tira Wes BA ee get lone 102
THE COURT OF APPEALS.

PAGE
Kernochan vs. Man. R’y Co., 161 N. Y. 339. 97
Killan, Matter of, 172 N. Ys $47, «ees eee0s 137
Kilmer vs. Bradley, 80 N. Y. 630....... 128, 129
King, Matter of, 130 N. Y. 602............ 138
King, Matter af, 108 WN. Ys S3eeawes eeuwas 136

King vs. Barnes, 107 N. Y. 645....62, 119, 123
King vs. Gottlieb, Matter of, 168 N. Y. 596... 140

King vs. Platt, 3 Abb. Pr. N.S. 174. sess. 60
Kings Co. El. R. R. Co., Matter of, 82 N. Y.

OS) woke ei dke ives bieeenieetwse eden 146
Kingsland vs. Fuller, 157 N. Y. 507. ...... 135
Kleiner vs. Third Ave. R. R. Co., 162 N. Y.

193 shiatewse ee ree ney eye wes 103, 162
Knapp vs. Roche, 82 N. Y. 366............ 128
Knickerbocker Ins. Co. vs. Nelson, 78 N. Y.

DOO? otha ete aie atte Bu ah eaa 13

Koehler vs. Hughes, 148 N. Y. 507. .21, 44, 86
Krekeler vs. Aulbach, 169 N. Y. 372. .84, 95, 98

Krekeler vs. Ritter, 62 N. Y. 372........... 51
Krekeler vs. Thaule, 73 N. Y. 608. ......... 29
L.

Ladenburg vs. Com. B’k of N., 148 N. Y. 200. 68
Laidlaw vs. Sage, 158 N. Y. 93...... 42, 82, 158
Lamkin vs. Palmer, 164 N. Y. 201........ 102
Lane vs. Wheeler, tor N. Y. 17. ....... 149, 168

Lanigan vs. N. Y. Gaslight Co., 71 N. Y. 29. 29

Lannon vs. Lynch, 160 N. Y. 483. .14, 26, 29

Lansing vs. Russell, 2 N. Y. 563......... 59

Lapham vs. Rice, 55 Ni Ys do ws seescessews 62
240
THE COURT OF APPEALS.

PAGE
Larnet, Matter of, 770 N. VY. Zoe. sess es 132
Lawrence vs. Congregational Church, 164 N.

We hi Gl Agena east aunmana ne eens 84, 98
Lowrence ve, Ely, 38 Ne Ve abi vo swe rcew en 61
Lawrence ys. Fatley, 73 N, Y. 187. «.0ce0s 62
Learned vs. Tillotson, 97 N. Y. 1. .......+-- 40
Leonard vs. Barnum, 168 N. Y. 41......... 122
Leonard vs. Mulry, 93 N. Y. 392........-.. 60
Lewis vs, Burton, 106 N. Vs 20s casas ewee 29
Lewis vs. L. I. R. R. Co., 162 N. Y. 62. ... 103
Liddell: vs. Paton, 67 N.Y. 409. ven. cunen. 69
Link vs. Sheldon, 136 N.Y. t.<:s4 255 42, 50
Linkauf vs. Lombard, 137 N. Y. 417........ 42
Littlejohn vs. Shaw, 159 N. Y. 188........ 78
Livermore vs. Bainbridge, 56 N. Y. 72. ... 60

Livingston’s Petition, Matter of, 34 N. Y. 555. 138
Livingston vs. City of Albany, 161 N. Y. 602.

LGgs EONS sea RE ee eeu aed 15, 18
Llamosas vs. Llamosas, 62 N. Y. 618. ...... 65
Logan vs. Simpson, 169 N. Y. 599. ....... 109
Lowenthal vs. Lowenthal, 157 N. Y. 236... 40
Lowery vs. Erskine, 113 Ns Ys $25 .2%« 2000s 14
Ludlow vs. Knox, 7 Abb. Pr. (N. S.) 411. . I41
Lyon vs. Hersey, 100 N.Y. 640. 6.5 cee. 20s 40

M.

McCall vs. Moschowitz, 1 N. Y. St. Rep. 99. 128

McCulloch vs. Dobson, 133 N. Y. 114.....50, 60

McDonald vs. Met. St. R’y Co., 167 N. Y. 66. 42
241
THE COURT OF APPEALS.

PAGE
McDonnell vs. N. Y. C. & H. R. R. R. Co.,

150 NS oY GAA ada then a giants oceans 83
MacEvitt vs. Maass, 64 App. Div. 382. ...... 181
McGregor vs. Buel, 24 N. Y. 166........... 50
McGuire vs. Bell Tel. Co., 167 N. Y. 208....

Spas eae eels as got ace ese abana Winans 103, 104
Mack vs. Colleran, 136 N. Y. 617. ....... 29
McKenna vs. Bolger, 94 N. Y. 641........ 60
McKeown vs. Officer, 127 N. Y. 687. ..119, 123
Mackey vs. Lewis, 73 N. Y. 382. ...... 152, 155
McLouth vs. Hunt, 154 N. Y. 179.......... 181
McNulty vs. Mt. Morris El. Light Co., 172

NeYV AIO sia Se vida tea areas 131, 133
McPherson vs. Schade, 149 N. Y. 16........ 55
Madden, Matter of, 148 N. Y. 136.......... 180
Malone vs. St. Peter’s & Paul’s Church, 172 N.

Ve 200 sickewnecie exdukanncse teases 170
Mansfield vs. Mayor, 165 N. Y. 208.....131, 132
Manning, Matter of, 139 N. Y. 446........ 180
Marcellus, Matter of, 165 N. Y. 70........ 82

Marden vs. Dorthy, 160 N. Y. 39.........

Brac aGe erate: Sate Sree alee AUnina Sa as 81, 89, 90, 98
Margraf vs. Muir, 57 N. Y. {55........... 55
Marine Nat. B’k vs. Nat. City B’k, 59 N. Y. 67 I91
Market Nat. B’k vs. Pacific Nat. B’k, 102 N.

Ve4Od jose ce eeia ies eae Gare a laleae aos 49, 59
Marsh vs. Pierce, 110 N. Y. 639........... 183
Martin vs. Home B’k, 160 N. Y. 190. ....... 47
Martin vs. Windsor Hotel Co., 70 N. Y. 101. 65
Marvin vs. Brewster, 55 N. Y. 547. ....... 94

242
THE COURT OF APPEALS.

Marvin vs. Marvin, 78 N. Y. 605. ....... 115
Mass. Nat. B’k vs. Shinn, 163 N. Y. 360. ... 47
Matchett vs. Lindberg, 2 App. Div. 340.:.. 24

Matteson vs. Palser, 173 N. Y. 404........ 46
Meacham vs. Burke, 54 N. Y. 217. ....... 41
Medbury vs. Swan, 46 N. Y. 206. ....... 62
Meltzer vs. Doll, gt N. Y. 365. ............ 49
Merges vs. Ringler, 158 N. Y. 70I.......... 135
Merriam vs. W. & P. Lith. Co., 155 N. Y. 136

LELAROO Ee eyeeueEEnos cae egorawan ee 59, 140
Meserole vs. Hoyt, 161 N. Y. 61........ 101
Metcalf vs. Moses, 161 N. Y. 587. ......... 97
Met. El. R. R. Co., Matter of, 128 N. Y. 600. 146
Meyer vs. Amidon, 45 N. Y. 169. ......... 94
Meyer vs. Lathrop, 73 N. Y. 315......... 94
Mickee vs. W. M. & R. M. Co., 144 N. Y. 613

Sacha Laer a wrahae Saat aS aa val ati US 25 A. 8
Miles vs. Dover Furnace Iron Co., 125 N. Y

BOA: ars attcew scab igre a acd We Be ee ASA ARE Gee 55
Miller vs. Tyler, 58 N. Y. 477. ........2.. 62
Mills vs. Davis, 53 N. Y. 349. .....-..00005 57
Mills vs. Green, 159 U. S. 651. .......... 179
Mills vs. Hildreth, 81 N. Y. of. .......... 64
Mojarietta vs. Saenz, 80 N. Y. 553.......-- 63
Moore, Matter of, 67 N. Y. 555. .......... 143
Moore vs. Moore, 138 N. Y. 679........... 66
Morris vs. Morange, 38 N. Y. 172......... 118
Morris vs. Talcott, 96 N. Y. 100........... 69
Moulton vs. Cornish, 138 N. Y. 133. ...... 117
Mount vs. Mitchell, 32 N. Y. 702........ IQI

243
THE COURT OF APPEALS.

PAGE
Mundt vs. Glokner, 160 N. Y. 571..... 149, 150
Munn, Matter of, 165 N. Y. 149........--- 138
Murphy vs. Jack, 142 N. Y. 215......+.. 69
Murphy vs. Walsh, 169 N. Y. 595. ...------ 144
Mut. L. Ins. Co. vs. Anthony, 105 N. Y. 57..
Sg Usaha) Pst eae fe aes a cng Naan, aN Nae Ae 142, 167
N.
National Bank of Deposit vs. Rogers, 166 N.
Nip BOO! fektatia ductorttnaniema tents hata te goals oe 4I
National Harrow Co. vs. Bement & Sons, 163
Na Ys GOS eels chews eater aatn eek ahs

ALN atewtons 14, 19, 22, 23, 24, 28, 20, 45, 46
Nat. Revere B’k vs. Nat. B’k of Republic, 172

IN i No NTO Va ssvajctera at nacts tuon in tatonyicraudy ah uareaey Lad 103
Nat. Shoe & Leather B’k vs. Mechanics’ Nat.

B’k, 89 N. Y. 440... ee eee eee 68
Neresheimer vs. Smyth, 167 N. Y. 202...... 172
Neuman vs. N. Y. Mut. S. & L. Ass’n, 164 N.

YY. 248 26440505 beexeead adeieeeies 28
New vs. Village of New Rochelle, 158 N. Y.

AT eaten see ae beara ae alee eee 131
N. Y.C.& H. R. R. R. Co., Matter of, 60 N.

Vie, CUI ele atahe ast Are dai atlas aelnaineatnie 183
N. Y.C.& H.R. R. R. Co., Matter of, 64 N.

WASOG ite igisaeek datasiades aan Mtanen ecto eis ewe 146
N. Y.C.& H.R. R. R. Co. vs. Marvin, 11 N.

NB 70 koe eta oe Gace seine 146
N. Y.C.& H.R. R. R. Co. vs. State of N. Y.,

466. Nu Ys 286 cc bee vegieltiogviaesaoue 150
THE COURT OF APPEALS.

PAGE
Newell vs. Bartlett, 114 N. Y. 399. ......... 79
Newell v. Doty, 33 N. Y. 83............. 79
Newell vs. Hall, 74 App. Div. 278. ......... 140
New York Ice Co. vs. N. W. Ins. Co., 23 N.

Ni B57 cei eed snwd eer vdeanes ewes 36
Newin vs. Lehigh Valley R. R. Co., 169 N. Y.

BBO ace sssaser hc. a.lgi@avia aya ogdet wciiales sl Gomes 142
Newton vs. Russell, 87 N. Y. 527.......... 138
New York, L. & W. Ry. Co. vs. Erie R. R.

Col, 170 N, Yo :448icc ca cuecseans 125, 128

New York Security & Trust Co. vs. Saratoga
Gas & El. Light Co., 156 N. Y. 654.... 143
N. Y. State Monitor Milkpan Co. vs. Reming-

fon, 100: Ns TAS cw geexteaerioaaws 153
N. Y., W. S. & B. R. R. Co., Matter of, 94

NEON 287 cnc ate tinda tine see ale 143
Nichols vs. MacLean, 98 N. Y. 458......... 188
Niendorff vs. Man. R’y Co., 150 N. Y. 276..

5 casera RAS yd NEE tae RRC Patina 4 ....128, 129, 158
Norton, Matter of, 158 N. Y. 130.......... 180
Noyes vs. Children’s Aid Society, 70 N. Y. 481. 70
Noyes vs. Wyckoff, 114 N. Y. 204. ........ 152

O.
Oakley vs. Aspinwall, 3 N. Y. 347.......... 5
Oberlander vs. Spies, 45 N. Y. 175.......+.-- 94.
O’Brien vs. East River Bridge Co., 161 N. Y.
C90 ta seureeee dee ties uses aearee ss 18

Ogden vs. Alexander, 140 N. Y. 356. ....86, 94
Oldfield vs. N. Y. & H. R. R. Co., 14 N. Y.
THE COURT OF APPEALS.

Oliphant vs. Burns, 146 N. Y. 236..........
Osterhoudt vs. Osterhoudt, 168 N. Y. 358.-.
Ostrander vs. Hart, 130 N. Y. 372. ....++ 2i,
Ostrander vs. Webber, 114 N. Y. 95......--
Ostrom vs. Greene, 161 N. Y. 353.---+- 4I,
Otten vs. Man. R’y Co., 150 N. Y. 395. .17,
P.
Parker vs. Day, 155 N. Y. 383........-005
Parsons vs. Parker, 159 N. Y. 16..........
Parsons vs. Parsons, 137 N. Y. 605........
Patten vs. N. Y. El. R. R. Co., 67 N. Y. 484.
Patten vs. Pancoast, 109 N. Y. 625........
Patterson vs. Robinson, 116 N. Y. 193. ..
Peck vs. N. Y. & N. J. R’y Co., 85 N. Y. 246.
Peekamoose Fishing Club, Matter of, 151 N.
NB AT ee ank 5 cia og ieee eacaa ce
Pelton vs. Ins. Co., 77 N. Y. 605..........
People vs. Adirondack R’y, 160 N. Y. 220...
People vs. Am. Loan & Trust Co., 150 N.
Nj chil 7” 25 ea pha etecaaie Nea eee 133,
People vs. Baker, 168 N. Y. 677. ..........
People ex rel. Broadway Improvement Co. vs.
Barker, 155 N. Y. 3............... 14,

People ex rel. Broadway Improvement Co. vs.
Barker, 158 N. Y. 322 ...........-25.
People ex rel. Bronx Gas & Elec. Co. vs. Bar-
ker 155 Ni Ys 808 cciovse nee eawes
People ex rel. Man. R’y Co. vs. Barker, 152
NOY ALe 2 adie hates be alee 82, 96,

PAGE

47
56
44
64
86
147

29
46
64
67
18

79
62

179
52
29

140
140

99
98
I41

oD
THE COURT OF APPEALS.

PAGE
People ex rel. Man. R’y Co. vs. Barker, 165

Nac-Ve0 812) casuaur iguaetn eiarniee 30, 74
People vs. Betts, 55 N. Y. 600............ 146
People ex rel. Feeny vs. Board of Canvassers,

156 N. Y.36........ I, 31, 73, 75, 136, 145
People ex rel. Hoffman vs. B’d of Ed., 141

INNS BG wih Sarid tine alloca A te heed ets 189
People ex rel. Steinson vs. Board of Education,

150. Neo Me 125 ate Gace aad 14, 51, 72
People ex rel. Waldman vs. Board of Police

Com, 82.0N, VY. 506 hi enedek kee 52
People ex rel. Loughran vs. B’d of R. R.

Comm’rs, 158 N. Y. 421..........6.. 99
People ex rel. Haneman vs. Board of Taxes,

OF On Ne DEG eooikan ee seeer ay eet 52

People ex rel. N. Y. C. & H. R. R. R. Co.
vs. Board of Taxes, 166 N. Y. 154....

insane mwa cewe keueoeanees 61. Si, 92598
People ex rel. Clute vs. Boardman, 4 Keyes 59 139

People vs. Boas, 92 N.Y. 500... wavs cheuas en 39
People vs. Braun, 159 N. Y. 558.......-. 77
People vs. Buffalo Stone & Cement Co., 131 N.

Vo TAO oi see Siena Bea Oe CaS 60
People ex rel. Forest Commission vs. Camp-

bell, 152 N: Y. Sis accsesaaeaeea es 52, 135
People vs. Carbone, 156 N. Y. 413.-.---.--- 76
People vs. Cignarale, 110 N. Y. 23......... 77
People vs. Clark, 70 N. Y. 518.......-..4- 180
People vs. Clark, 168 N. Y. 676........... 140

247
THE COURT OF APPEALS.

PAGE
People ex rel. McDonald vs. Clausen, 163 N.

Ve: $23 dic seeien daa saw eeeels erase xe 38
People ex rel. Lentilhon vs. Coler, 168 N. Y. 1.

(ivieuube mens ee wurneeyeconguc ses BI, 72
People ex rel. Rodgers vs. Coler, 166 N. Y. 1. 51
People ex rel. Geer vs. Common Council of

Trey, 2 DL Na 7 oaks ree wreiwesenen 180
People ys. Conroy, 07 N. Ys G29 sccaseeans 39
People vs: Conroy, 151. N.Y. $43. s 0000056 178
People v. Conroy, 153 N. Y. 174........... 77
People vs. Constantino, 153 N. Y. 24........ 76
People vs. Gorey, 157 N.Y. 332. os csuee aes 76
People ex rel. Commissioners of Charities vs.

Cullen, 153 N. ¥, 62044 i408 55 sigan eT 2, 177
People ex rel. Same vs. Same, 151 N. Y. 54..

ee ee ee 3, 177, 178
People ex rel. Warschauer vs. Dalton, 159 N.

Wi Cab teste eaereeasuamaneses sees 48
People vs. Decker, 157 N. Y. 186........... 77.
People vs. Dennison, 84 N. Y. 272. ........ 155
People vs. Drayton, 168 N. Y. I0...... 107, 175
People ex rel. Negus vs. Dwyer, 90 N. Y. 402

ena aes iee ation A ene hake Reece ees 139, I41
People ex rel. Grissler vs. Fowler, 55 N. Y.675 64
People vs. Gilmore, 88 N. Y. 627. ..... 139, 142
People vs. Grossman, 168 N. Y. 47. ....... 977
People vs. Hall, 169 N. Y. 184............. 76
People vs. Helmer, 154 N. Y. 596.....107, 108
People ex rel. Davis vs. Hill, 53 N. Y. 547... 52
People vs. Hoch, 150 N. Y. 291.,........ 76, 77

248
THE COURT OF APPEALS.

PAGE
People ex rel. Durant L. I. Co. vs. Jeroloman,

139..Ny Yo 453 sews: 14, 31, 51, 72, 73
People ex rel. Burnham vs. Jones, 110 N. Y.

500 mai hoa ae icia w ae ears s 181
People vs. Kennedy, 159 N. Y. 346........ 77
People vs. Kennedy, 164 N. Y. 449. ....... 76
People ex rel. Breslin vs. Lawrence, 107 N. Y.

OOF serine nas Ge cate tie Ses Sea 181
People vs. Ledwon, 153 N. Y. 10........ 40, 77
People ex rel. Coler vs. Lord, 157 N. Y. 408.

(PEN eee Fea Re Ree RSE SEES ae 14, 52
People vs. Lyons, 110 N. Y. 618........... 76
People vs. McDonald, 159 N. Y. 509....... 76
People vs. Malone, 169 N. Y. 568....... 177, 178
People vs. Mayhew, 151 N. Y. 607. ....... 176
People ex rel. May vs. Maynard, 160 N. Y.

AGG Oey ed ener teRaaueedaweae tes G2, £72
People vs. Miller, 169 N. Y. 339.3, 107, 108, 176
People vs. Mitchell, 142 N. Y. 639.......... 39
People ex rel. Rice vs. Moss, 161 N. Y. 623. 51
People vs. Northern R. R. Co., 42 N. Y. 217... 59
People vs. O’Brien, 164 N. Y. 57....... 39, 175
People vs. Owens, 148 N. Y. 648.......... 40
People vs. Place, 157 N. Y. 584........... 77
People vs. Priori, 163. Ni V2 90. o.se45 176, 178
People vs. Rice, 159 N. Y. 400. .......... 76
People vs. Russell, 171 N. Y. 655......... 140
People ex rel. Gleason vs. Scannell, 172 N. Y.

BIO! adie tom etiiete waulemiaeae es 106
People vs. Schmidt, 168 N. Y. 568......... 77

249
THE COURT OF APPEALS.

PAGE
People vs. Schoonmaker, 50 N. Y. 499..-.-- 68
People vs. Sherlock, 166 N. Y. 180. ....... 77
People vs. Stevens, 104 N. Y. 667.......... 39
People ex rel. Sternberger vs. Sternberger, 153
Ne Vo O8do ie isiedecxchisaes ee ee gesges 53, 972
People ex rel. Vanderbilt vs. Stilwell, 19 N.
NerS3h s.cieeiveaaace easier ewe eee 52
People ex rel. Hasbrouck vs. Supervisors, 135
GN Beene Meee G whe Remmi ae 53
People ex rel. O’Connor vs. Supervisors, 153
SoS Kee eee: 5B, 72
People vs. Sutherland, 154 N. Y. 345. ...... 77
People ex rel. Village of Brockport vs. Sut-
‘phin, 166 N. Y. 163.............. 29, 81
People ex rel. Commercial Ins. Co. vs. Tax
Commissioners, 144 N. Y. 483........ 52
People vs. Taylor, 138 N. Y. 398. ......... 77
People ex rel. Judson vs. Thacher, 55 N. Y.

OG cuter eat aoa re neato aaa oe ame ee 151
People vs. Trezza, 128 N. Y. 529. ........ 3, 176
People vs. Tweed, 63 N. Y. 194......... 63, 64
People ex rel. Jacobus vs. Van Wyck, 157 N.

Ni 4Q5) hs cesa cee ee 14, 31, 51, 72, 73
People ex rel. Smith vs. Village of Nelliston,
90: Ne Ns O38 chon gareeGawagewewareis 189

People ex rel. Hart vs. York, 169 N. Y. 452. 144
Peri vs. N. Y. C.& H. R. R. R. Co., 152 N.

Ve Gel pops eguess euuieeeee 136
Peters vs. Delaplaine, 49 N. Y. 362. ....... 55
Peterson vs. Swan, 119 N. Y. 662........ 179, 188

250
THE COURT OF APPEALS.

PAGE

Petrie vs. Trustees of Hamilton College, 158
Ni Ye ASS xekeocuwawe alae Sieh 29, 88, 93
Pfohl vs. Sampson, 59 N. Y. 174. .......... 67
Pharis vs. Gere, 112 N. Y. 408.......... 34, 130

Place vs. N. Y. C. & H. R. R. R. Co., 167
INS NGM AG ty eeetee wrta alt aca sr anuektans 42
Platt vs. Platt, 105 N. Y. 488............. 181
Pollock vs. Iron Works, 157 N. Y. 699. .... 78

Porter vs. International Bridge Co., 163 N. Y.
GI isct waren ee Te eee 167, 168, 184
Potter vs. Carpenter, 70 N. Y. 74.......... 40
Prentice, Matter of, 160 N. Y. 568. ........ 137

Price vs. Oswego R. R. Co., 50 N. Y. 213.... 94
Pringle vs. L. 1. R. KR. Coy 157 N. Voi100.71, 173

Produce B’k vs. Morton, 67 N. Y. 199....... 117
Prospect Park & C. I. R. R. Co., Matter of,

S5 Ni Ye 497) <5 te kagesnaivew cna kts 145, 146
Prospect Park & C. I. R. R. Co., Matter of,

83. Ne Vo 480.000 panera Goeuneseaus 146
Provost vs. Provost, 70 N. Y. I41......... 50
Purdy vs. Erie R. R. Co., 162 N. Y. 42. .... 47

Q.
Queen vs. Weaver, 166 N. Y. 398........ 14, 28
Quinby vs. Claflin, 77 N. Y. 270............ 62
Quincey vs. Young, 53 N. Y. 50............. 128
Quinlan vs. Welch, 141 N. Y. 158........... 47
R.
Randall vs. Packard, 142 N. Y. 47. ....... 61
Randall vs. Randall, 114 N. Y. 500. ........ 59

251
THE COURT OF APPEALS.

PAGE
Randel, Matter of, 158 N. Y. 216. ........- 4I
Randolph vs. Loughlin, 48 N. Y. 456......- 15
Rapalee vs. Stewart, 27 N. Y. 310..... 127, 128
Ray vs. N. Y. Bay Ex. R. R. Co., 155 N. Y.

102 nic oeu sa aeaas eae w ca ee etree 139, 141
Raynor vs. Raynor, 94 N. Y. 248. ..120, 123, 149
Read vs. Nichols, 118 N. Y. 224. .......... 79
Reéd vs. MeConnell, 133 Ny ¥.425. e000 50e% 152
Reed vs. McCord, 160 N. Y. 330...... I, II, 162
Reed vs. Mayor, 97 N. Y. 620.......... 62, 7I
Reed vs. Schenectady R’y Co., 170 N. Y. 298. 56
Reese ys, Boese, 02 IN, ¥. 692) ssccser ves 186
Reeve, Matter of, 34 N. Y. 359. .......... 63
Regan, Matter of, 167 N. Y. 338........... 136
Rensselaer & S. R. R. Co. vs. Davis, 55 N. Y.

LAG cc Ren Ce pee eee steel wens ehees 115
Reinmiller vs. Skidmore, 59 N. Y. 661...... 80
Reusens vs. Reusens, 133 N. Y. 298........ 53
Ricard vs. Sanderson, 41 N. Y. 179........ 21
Rice vs. Culver, 172 N. Y. 60. ........... 18
Rice vs. Grange, 131 N. Y. 149........... 62

Rich vs. Man. R’y Co., 150 N. Y. 542. ....3, 120
Rider vs. Syracuse R. T. R’y Co., 171 N. Y.

130. ha se Rte ee Sarees a TER Re ee ele 103
Riendeau vs. Bullock, 147 N. Y. 269. ...... 29
Roberts vs. Baumgarten, 126 N. Y. 336. ..... 152
Roberts vs. N. Y. El. R. R. Co., 155 N. Y. 31.
SORE CLE SLAM GU REAR ee heb Re 49, 50
Roberts vs. Tobias, 120 N. Y. 1............ 29
Robinson, Matter of, 160 N. Y. 448. ...... 171

252
THE COURT OF APPEALS.

PAGE
Rochester Lantern Co. vs. Stiles & Parker
Press (05. P35. Mi, Me 200 eo iyua owen 86
Rodgers vs. Clement, 162 N. Y. 422........ 98
Roe vs. Boyle, 81 N. Yo S05.sscsseea0ne% 144
Rogers, Matter of, 153 N. Y. 216.......... 85
Rogers vs. Durant, 56 N. Y. 669............ 59
Rose vs. Hawley, 133 N. Y. 315. .......-- 152
Rosenstein vs. Fox, 150 N. Y. 254...... 14, 44
Roslyn Heights Lands Co. vs. Burrowes, 22
App: DIVE 540° 2a ccueres ease wees 128
Ross vs. Caywood, 162 N. Y. 259........ 47, 131
Rumsey vs. Briggs, 139 N. Y. 323. ..-+.--- 86
Russell vs. Randall, 123 N. Y. 436. ......-- .. 36
Rust ve. Hauselt, 69 N.Y. 485. «00. <a00> 130
Rutherford vs. Schattman, 119 N. Y. 604.... 41
Ryers, Matter of, 72 N. Y. 1. .......--00- 145
5:
Sige Matter Gl. Yo Ny Vo 223) cuneugiasss 51
Sage vs. Volkening, 46 N. Y. 448.......... 187
Salisbury vs. Howe, 87 N. Y. 128. ....... 47
Sanger vs. French, 157 N. Y. 213......... 13
Sartwell vs. Field, 68 N. Y. 341........... 68
Schell vs. Mayor, 128 N. Y. 67. ........ 14, 57
Schenck ys. Barnes, 156 N. ¥. 336. .....4> I7I
Schneider vs. City of Rochester, 155 N. Y. 619.
Ai PEM RNAS ARAN SE SER 67, 70
Schryer vs. Fenton, 162 N. Y. 444. ...... 33, 34

Schwinger vs. Raymond, 83 N. Y. 192....46, 78
253
THE COURT OF APPEALS.

PAGE
Sciolina vs. Erie pela! Co., 151 N. Y. 50.
SELTRE MEARE SURI YR READER ESSER I, 159
Scott vs. Morgan, 94 N. Y. 508. ......... 48
Second Nat. B’k vs. Weston, 172 N. Y. 250..
(PINE MELE TKR Ee Sev Rew eS 105, 107
Selchow vs. Baker, 93 N. Y. 59. ......---- 67
selden vs. D. & H. C. Co., 27 N. Y. 326. ... 127
Seneca Nation vs. Knight, 19 N. Y. 587...... 179
Serviss vs. McDonald, 107 N. Y. 260........ 78
Sheldon vs. Sheldon, 51 N. Y. 354........ 15, 29
Sherman vs. Felt, 2. ¥, 186.4020 05s ocd oe 63
Sherman vs. Foster, 158 N. Y. 596....21, 44, 86
Sherman vs. Straus, 52 N. Y. 404........... 63
Sherwood vs. Hauser, 94 N. Y. 626. ...... 14
Shield vs. Wortmann, 126 N. Y. 650...... 50, 51
Shotwell vs. Dixon, 163 N. Y. 43...22, 29, 131
Shultz vs. Hoagland, 85 N. Y. 464. ....... 13
Sickles vs. Flanagan, 79 N. Y. 224.......... 41
Sidwell vs. Greig, 157 N. Y. 30............ 157
Sigua Iron Co. vs. Brown, 171 N. Y. 488,
ee ee ee eee 43, 78, 106
Simar vs. Canaday, 53 N. Y. 298. .......... 48
Simmons vs. Cloonan, 81 N. Y. 557.......- 13
Simpson, Matter of, 158 N. Y. 720.......... 60
Simson vs. Satterlee, 64 N. Y. 657........ 66
Small, Matter of, 158 N. Y. 128........... 142
Smedis vs. B. & R. B. R. R. Co., 88 N. Y.94.. 79
Smith vs. Alker, 102 N. Y. 87. ... ....... 54
Smith vs, Coe, 55 Ni Vu 678) <sesseaxwee 18
Smith vs. Platt, 96 N. Y, 635. .....-..... 49

254
THE COURT OF APPEALS.

PAGE
Smith ws. Secor, 157 N. ¥i 402s. .00g00qs 135
Smith vs. Smith, 125 N. Y. 224............ 47
Smith vs. Syracuse Improvement Co., 161 N.

NiMA GAR sites bieress Waite leare eli etre uehey ang 29
Snebley vs. Conner, 78 N. Y. 218.......... 34
Snider vs. Snider, 160 N. Y. I51........... 47
Snyder vs. Seaman, 157 N. Y. 449.......... 131
Snyder vs. Snyder, 96 N. Y. 92............. 25
Southern Boulevard R. R. Co., Matter of, 128

Ne VY) 0334080 405 tot ade tions 143, 166, 167
Southern Boulevard R. R. Co., Matter of, 141

NwYV 5 32s 2cea eas ae aie eee Saeee ea a4 146
Southern Boulevard R. R. Co., Matter of, 143

IN N25 3 rend btw ited Aoigrelasees Banansndatens 146
Southern Boulevard R. R. Co., Matter of, 146

Ne Vu B6 2h oi iie Genghis ei eet 146
Southwick vs. Southwick, 49 N. Y. 514. ... 51
Spears vs. Mayor, 72 N. Y. 442............ 62
Spellman vs. Looschen, 162 N. Y. 288..... . 29
Spence vs. Ham, 163 N. Y. 220..14, 23, 27, 29
Sperling vs. Boll, 26 App. Div. 64. ......... 186
Spies vs. Lockwood, 165 N. Y. 481. ..... 14, 15
Sprague vs. Cochran, 144 N. Y. 104........ 62
Standard Oil Co. vs. Amazon Ins. Co., 79 N.

Ye S00 seas taecio wie ae eee meta <6 50
Standard Oil Co. vs. Triumph Ins. Co., 64 N.

he ere eee eer ee er een ree ee eee 86
States vs. Cromwell, 104 N. Y. 664. ...... 188
Steamship Richmond Hill Co. vs. Seager, 160

Nw Ve 312 viegssiee ora saws 142, 168, 184
THE COURT OF APPEALS.

PAGE
Steck vs. Col. Fuel & Iron Co., 142 N. Y. 236. 65
Steinway vs. Steinway, 163 N. Y. 183. ...15, 18
Steinway vs. Von Bernuth, 167 N. Y. 498.... 171
Steuben County B’k vs. Alberger, 78 N. Y. 252. 69
Stevens vs. Cent. Nat. B’k, 162 N. Y. 253... 129
Stillwater R’y Co., Matter of, 170 N. Y. 573. 141
Stilwell vs. Mut. L. Ins. Co., 72 N. Y. 385... 40

Stilwell vs. Priest, 85 N. Y. 649 ........... 59
Stokes ye. Stokes, 155 N.Vs SB. sceeese vss 55
Stoughton vs. Lewis, 2 How. Pr. N. S. 351. 108
Strasser vs. Moneelis, 108 N. Y. 611........ 67
Strauss, Matter of, 157 Ni. Yo 720c0.06000% 180
Supervisors of Monroe vs. Clark, 92 N. Y. 391. 86
Sutton vs. Davis, 64 N. Y. 633 ....0.-++5% 65
Swan, Matter of, 97 N. Y. 492 ............ 146
Szuchy vs. Hillside Iron & Coal Co., 150 N.

Mie 22 ee cacneyats Dahlen sea ont, 2, 14, 102, 108

T.

Talmage, Matter of, 160 N. Y. 512......... 137
Tanton vs. Groh, 8 Abb. Pr. N.S. 385. ...... 65
Taxpayers of Pittsburgh, Matter of, 157 N. Y.

IS ives haa Dad Ree ees Bawa e ES 136
Taylor vs. Smith, 164 N. Y. 399. ....36, 71, 127
Thompson vs. Hazard, 120 N. Y. 634. ...... 79
Thompson vs. Simpson, 128 N. Y. 270. ..... 106
Thomson vs. British Bk. of N. A., 82 N.

We Tesoeiebuessepecdeake ieee eey 44, 86
Thornigton vs. Merrick, 101 N. Y. 5. ...... 68

Thornton vs. Autenreith, 55 N. Y. 659. ..15, 29
256
THE COURT OF APPEALS.

PAGE
Thorne, Matter of, 162 N.Y. 238......00.45 15
Thurber, Matter of, 162 N. Y. 244. ........ 71
Thurber vs. Harlem, B. M. & T. R. R. Co.,

GOAN, Ye 326 28 eo neewis saawee 36, 127
Tilton vs. Beecher, 59 N. Y. 176......... 63, 71
Tilton vs. Vail, 227.Ni V. $20: ss idee seas 123
Titus vs. Orvis, 16 N. Y. 617. ...........-. 15
Tolman vs. S. B. & N. Y. R. R. Co., 92 N. Y.

FG OE ists daca te it eectn ht ahcnatiae award Get 25, 68, 71
Townsend vs. Ball, 167 N. Y. 462........ 25, 173
Townsend vs. Chapin, 152 N. Y. 649........ 140
Townsend vs. Nebenzahl, 81 N. Y. 644...... 69
Townsend vs. Van Buskirk, 162 N. Y. 265

pie OGeM Reuse Sheeusneee 124, 125, 149
Tracy vs. Altmyer, 46 N. Y. 598........... 49
Tracy vs. First Nat. Bk. of S., 37 N. Y. 523. 69
Travis vs. Myers, 67 N. Y. 542. ........... 66
Trimble vs. N. Y. C. & H. R. R. R. Co., 162

ING NOR RAY Codecs aetecsinenes oie, tied aecerste tel xen 106
Trustees of Amherst College vs. Ritch, I151....

INGEN 282 ee wih boa ond ney es lete ag 21, 87, 88, 93
Trustees of Columbia College vs. Thacher, 87

Ne NB 1 ae touche nation abetniee eek ease 55
Trustees of N. Y. & Brooklyn Bridge, Matter

of, 137 Ne. 05 5cacadarees adeee ee os 146
Turner vs. Weston, 133 N. Y. 650...=...-43, 79
Tuttle vs. Nat. B’k, 170 N. Y. 9. .......... 51

U
Underwood vs. Green, 56 N. Y. 247........ 63

Union Trust Co., Matter of, 172 N. Y. 494... 139
257
THE COURT OF APPEALS.
V. PAGE
Van Arsdale vs. King, 152 N. Y. 69......- 5
Van Arsdale vs. King, 155 N. Y. 325...114, 140, 179
Van Beuren vs. Wotherspoon, 164 N. Y. 368. 28

Van Camp vs. Searle, 147 N. Y. 150.......- 68
Vandewater, Matter of, 115 N. Y. 669...... 63
Vandewater vs. Kelsey, 1 N. Y. 533...----- 68
Van Gelder vs. Van Gelder, 84 N. Y. 658.... 50
Van Wyck vs. Walters, 81 N. Y. 352....... 13
Vermilya vs. Palmer, 52 N. Y. 471.......... 13
Victory vs. Blood, 93 N. Y. 650............ 123
Village of Champlain vs. McCrea, 165 N. Y.
204 ire swe has AARNE RAEN WES RSs 74, 138
W.
Wade vs. Delyer, 63 N. Y. 318..........-. 62
. Wahl vs. Barnum, 116 N. Y. 87........ 123, 124
Wakeman vs. Price, 3 N. Y. 334. .......... 61
Walker vs. Spencer, 86 N. Y. 162. ...... 120, 123
Wallace vs. Castle, 68 N. Y. 370. .......... 60
Wangner vs. Grimm, 169 N. Y. 421. ....43, 78
Ward vs. Craig, 87 N.Y. 550. 6.0 cae cee can 79
Warn vs. N. Y. C. & H. R. R. R. Co., 163
Ne Vis 152 5 iterias hoe cred dee pee ucerlnas ant 83
Watertown B’k & Loan Co. vs. Mix, 51 N. Y.
550 kw ve ewe Sa Ges a dis Mace ee adie tk 61
Waverly Water Works Co., Matter of, 85
De desc pease cvekesecanave Ste 66, 67
Welch, Matter of, 74 N. Y. 299............ 53
Wenzell vs. Morrissey, 115 N. Y. 665. ...... 69

Werner vs. City of Rochester, 149 N. Y. 563.. 47
258
THE COURT OF APPEALS.

PAGE
Westerfield, Matter of, 163 N. Y. 209........
Pee a eee aaa oeeeiee Sede 58, 74, 162, 172
Westerwelt vs. Phelps, 171 N. Y. 316. ....... 106
Weyor vs. Beach, 79 N. Y. 409............. 29
Wetmore vs. Wetmore, 162 N. Y. 503......

(MURwsEOE RUM ua eriee esis a1, 73,74, 75
Wheeler vs. Billings, 38 N. Y. 263. ........ 79
Wheeler vs. Sweet, 137 N. Y. 435.........- 80
Whitaker vs. Imperial Skirt Mi’g Co., 78 N.

W Osh essupuubey coat eorineine pietes 69
White, Matter of, 170 N. Y. 575..........45 142
White vs. Benjamin, 150 N. Y. 258. ..... 40, 49
White vs. Calder, 35 N. Y. 183. ............ 55
White vs. Inebriates’ Home, 141 N. Y. 123. . 67
Whiter vs. Coulter, 59 N. Y. 629........... 62
Whitney vs. Townsend, 67 N. Y. 40.n..... 61
Whitson vs. David, 81 N. Y. 645........... 50
Whittlesey vs. Hoguet, 66 N. Y. 358. ....... 143
Wicks vs. Thompson, 129 N. Y. 634. ....... 78
Wilkin vs. Raplee, 52 N. Y. 248............ 57
Williams vs. D. L. & W. R. R. Co., 127 N. Y.

O43 ei kadeueaiee ieee eee ee 34, 35
Williams vs. Jones, 166 N. Y. 522.......... 99
Williams vs. Lindblom, 143 N. Y. 675...... 156
Williams vs. Montgomery, 60 N. Y. 648..... 61
Williams vs. West Union Tel. Co., 93 N. Y.

CAO SSH rewek shee 5 males Slate 67, 182
Winans vs. Winans, 124 N. Y. 140. ......... 66
Wines vs. Mayor, 70 N. Y. 613............. 48
Winne vs. Winne, 166 N. Y. 263. .......... 55

259
THE COURT OF APPEALS.

PAGE

Winter vs. Eckart, 93 N. Y. 48. ........06- 61

Witkowski vs. Paramore, 93 N. Y. 467. .... 64
Wittleder vs. Citizens’ E. I. Co., 47 App. Div.

CAG co svrisuyeste gees peQesueEes caees 83
Woerishoffer vs. North River Construction Co.,

00. Nw Vr 208.0 cea ca eee PRE aie 64

Woodbridge vs. First Nat. B’k, 166 N. Y. 238. 50
Woodhull vs. Rosenthal, 61 N. Y. 382....21, 44

Wright vs. Brown, 67 N.Y. I. eva cccncsaes 69
Wright vs. Hunter, 46 N. Y. 409. ......... 108
Wunch vs. Shankland, 170 N. Y. 573....... 33
¥;
Yale vs. Curtis, 151 N. Y. 598. ........-.-. 40
Young vs. Fox, 155 N. Y. 615. ....161, 162, 169
Young vs. Gilmour, 171 N. Y. 680. ......... 109
Young vs. Gilmour, 167 N. Y. 500.,........ 125

260
THE COURT OF APPEALS.

INDEX.

(References are to pages.)

Abstract Controversies, Review of...... 179, 180
Actual Determinations, what are........... 179
Affirmance, Review of judgment of.
*"Nhere Appellate Division was divided.. 40
Where Appellate Division was unanimous 54
Questions reviewable on appeal from
judgment of affirmance by divided Ap-
pellate Division ................ 40, 45
What questions will be considered for the
purpose of affirming a judgment..46, 48
Implication of findings for purpose of af-
TPMANRCE cree ges ee 45, 86, 93
As to effect of unanimous affirmance by
Appellate Division, and questions re-
viewable on such appeals, see Unani-
mous Affirmance.
Allowance, of appeal. Principles governing. .
See Th CORRS ae pee e sie Sees aes 159, 160
Effect of — where appeal is from interme-
diate order or interlocutory judgment
i Shoes Se RaSh ES EMER Peewee 168, 169
Effect of — where appeal is from order
granting new trial on exceptions. .149, 150
261
THE COURT OF APPEALS.

(References are to pages.)

Effect of — where appeal is from judg-
ments specified in sec. 191 of Code..
hth aeepee teeta! ad lack top Ad Sah Si 161, 162, 163
Within what time appeal must be allowed
Dasteee NG se ft te aera hed Anteete dea Rie 167, 168, 184
Form of Certificate:
(a) On appeals from intermediate orders
or interlocutory judgments..........
Sebel nie bcda hk eeneauneta enn 168, 169, 170, 171
(b) On appeals from judgments specified

in Code Civ. Pr., sec. 191........... 161
Only questions of law may be certified. 58, 172
Appeal, from what taken................. 110
Appeal from judgment (not order) of af-
firmance or of dismissal......... 128, 129
Appeal from order for new trial (not from
JUGEMENL) ves seny sess oavarese 129, 130
Who may appeal................. 181, 182
When appeal must be taken............
sshitody aire as phiae road 167, 168, 182, 183, 184
How appeal must be taken............. 186

Board, determination of. Not subject to sec.
1338 of the Code.................. 29
Subject to rule as to unanimous affirmance 99

Bond, action on individual bond or individual

undertaking on appeal.............. 164
When judgment in such action reviewable 165
Case on appeal to Court of Appeals...... 186, 187
‘When case must be served............. 187

262
THE COURT OF APPEALS.

(References are to pages.)

Effect of failure to serve...............
What case should contain.......... 187,
Certificate that case contains all the evidence,
not necessary. ...... eee eee eee eee #3,

Certificate, Form of.
On appeal from judgment of affirmance in
action specified in Code Civ. Pr., sec.
LOL cies eon ado keanae aden teat 161,
On appeal from interlocutory judgment or
intermediate order ..... 168, 169, 170,
What questions may be certified........
pa tas ces ey va eae ta owe ee ea 58, 169, 171,
Code of Civil Procedure, provisions regulating
jurisdiction of Court of Appeals......
Code of Criminal Procedure, provisions regu-
lating jurisdiction of Court of Appeals

Constitution.

17I

172

7

Io

Provisions regulating membership of Court 3

Provisions regulating jurisdiction......

Court of Appeals.

Origin of jurisdiction............-000.
Power of legislature to restrict jurisdic-

HOM coackudisoreeke se evenness
Power of legislature to enlarge jurisdiction
Composition of Court.............005.
Function of, in judicial system..........
Extent of relief which court may grant..

Original jurisdiction..............506-
263
THE COURT OF APPEALS.

(References are to pages.)

What applications must be made in court
below after appeal to Court of Appeals

Biche eat ass a th eda eda nde cin Ss 188, 189
Criminal causes.

Review of reversal of judgment in...... 39
Exceptions when necessary............ 77
Review of affirmance................. 75
Power to review the facts........... 75, 76
What orders and judgments in criminal

causes are subject to review..........

er ee eee eee 174, 175, 176, 177
Application of rule as to unanimous af-

HITMANCE wy cae Wa ee nee hee eae ve 107

Constitutional restrictions on court’s ju-
risdiction, how far applicable to. .2, 107, 175
Power to review interlocutory judgment

in criminal causes.................. 175
Judgments of death................ 75, 174
Death, injuries resulting in................ 157

When appeal in actions for such injuries
may be heard. (See Personal Inju-

TIES)! Lgctieul eet heen eas chao oats 157
Death, judgments of..................-.. 75
Power to TeVieW sss cis eeesa es enn ees 75
Questions reviewable on appeal from.... 76
Default, judgments by................000. 179
RéviéW OL. cccdsadisswcvedawe teamiees 179
Discretionary orders and judgments........ 49
Not reviewable by Court of Appeals.... 49

264
THE COURT OF APPEALS.

(References are to pages.)

What judgments and orders are discre-

MONATY ¢sacctae eee vg ee see ee Rend 49-69

Presumption as to grounds of decision
where relief may have been granted or
withheld on discretionary grounds... .

Serguei aican esc ndra eee 30, 69, 70, 71, 72,
Dismissal of appeal.
When ordered after unanimous affirmance
by Appellate Division........... 108,
When ordered after a reversal by the Ap-
pellate Division on the facts..........
rere ee ee ee 14, 15, 32, 34,
How far a bar to a second appeal.......
Disqualification of Judge.

Not to be waived.................005
Exceptions.
When: necessary ............... 43, 77,
When unnecessary .............64. 76,
Order granting new trial on exceptions. .
ical sss Meier aaa eins Ate he weapon ae 147,
Facts.

No power in Court of Appeals to review.
Power formerly given to court to review
reversal on facts in action tried before
court or referee, no longer belongs to it
Reversal on the facts how shown by the

OTe? occas 6 ete See eRe 14, 24,
Presumption as to reversal on the law or
the facts:

265

73

109

39
186

78
79

148

12

a

26
THE COURT OF APPEALS.

(References are to pages.)

In actions tried before court or referee..
pidiokeiaste koe tale t4, 15; 24, 25, 26
In Jury Causes) . gs se accion eeiieewls » 32-36
In special proceedings ..............- 30
In mandamus and certiorari proceedings
MARTE SLA eeee twee ee 30, 31, 37
In criminal causes ...... 0.000002 ee eee 39
Reversal stated to be on the facts but
really on the law......... 15, 16, 17, 18
What is a reversal on the facts as distin-
guished from one on the law........
TE RHEE Lelasakes Pte oa ee S 18, 20, 22, 23, 45
Final judgments, What are............ II4, I15
Distinguished from interlocutory judg-
MONS. ass bee eee Re 116, 117, 118, 119
Distinguished from final orders........
Satis ae iain Leena ieee 114, 115, 133
What reviewable as of right........ 110, III
Final Order. Definition.......... 114, 133, 134
Distinguished from judgments...... 114, 133
Distinguished from intermediate orders.
bile tance loses taf Ane lnasucet ates 114, 133, 134
What are final orders.135, 136, 137, 138, 139
What are not final orders..............
eins wie ne Reale eae 140, 141, 142, 143, 144
Review of reversal of final order........ 30
Presumption as to grounds of reversal... 30
Discretionary final orders........... 30, 31
Mandamus and certiorari........... 30, 31
266
THE COURT OF APPEALS.

(References are to pages.)

Form of order of reversal...'..........
Review of intermediate order necessarily
aitecting final order. ies ss ieca an owe
Findings and short decision.
Effect compared ....20, 45, 85-89, 93,
Presumptions arising in support thereof.

When findings implied....... 85-89, 93,
Forms of Order.
(See Order, Form of.)

Fraudulent Conveyances.
Action to set aside, when judgment in

such action reviewable........... 162,
Allowance of appeal................5-
Effect of allowance.......... 161, 162,
How appeal may be allowed...161, 162,
When appeal may be allowed....... 159,

Function of Court of Appeals in Judicial Sys-

TOM, dsieews slat bea Waites Bee wid Sane

Implied findings.
When findings will be implied........
inciebiebe anda n es at 43, 44, 45, 85-89, 93,
Distinction between short decision and old
form of findings so far as the implica-
tion of findings is concerned. .85-89, 93,
Inferior Courts, appeals in actions arising in..

Sandia ntcap Seren pen eneaaien easy anaacsaner des Gans 156,
Interlocutory judgments, What are. .116, 117,
Distinguished from final...... £16, T1F;

267

128

94

94
94

163
162
163
163
184

II

94

94

157
118
118
THE COURT OF APPEALS.

(References are to pages.)

How reviewable ....119, 120, 121, 166,
Direct appeal to Court of Appeals from fi-
nal judgment of Special Term after af-
firmance of interlocutory judgment...
dene cs trae Seiad eae 119, 120,

Intermediate Orders.
When reviewable ................ 165,
Allowance of appeal...............05.
How appeal may be allowed...........

When appeal may be allowed...... 167,
Form of certificate on allowance of ap-
peal secs seewewes 168, 169, 170, 171,

Presumption as to grounds of decision
where questions are certified.........
Intermediate order or interlocutory judgment,
necessarily affecting the final judgment.

What is ...... “,...11Q, 125, 126, 127,
How reviewable ....119, 120, 121, 124,

Judgment Absolute. See, also, Stipulation for
Judgment absolute.
When Appellate Division may order.....
Sp Sede Gstaad ad Sabet Gahan tae 130, 131,
When Court of Appeals may order......
MPEP PUERE GRR SOS 130, 131,
Rule in special proceedings the same as in
ACHONS esd sca oas yew ake Gee baw ela
Jurisdiction of Court of Appeals.
OUI OF cpeanuaueeen eri aansQennnen

167

I2I

166
159

168
184
173
173

128
125
THE COURT OF APPEALS.

(References are to pages.)

Power of legislature to restrict......... I

Power of legislature to enlarge.........
Jury causes.

Review of reversal of judgment in jury

CHSC tae e 5 pan eeee eee eee 22
Form of order of reversal...... 32, 33, 34
Questions reviewable on appeal from rever-

Salinas Gy sebwedes ate magenta selena 32-36
Review of affirmance ................ 40
Questions reviewable on appeal from af-

firmance:

1. Where Appellate Division was di-

Vided osc cieedeee nie dye evewvee ees 40-48
2. Where Appellate Division was unani-

MOUS: ss tes ee RAG Cae eee wee 100-

Law. Questions of.

Restrictions of Court’s jurisdiction to.... 12

What questions of law are reviewable on
appeal from reversal of judgment or fi-
nal order of referee or court without a
Mil) inekacceus bear tpaeeaieneuney 13-32

What questions of law are reviewable on
appeal from reversal of judgment in
JULY CAMGeS 44. asa vewkeeseee eas’ 32-40

What questions of law are reviewable on
appeal from affirmance of judgment..
Roo tee lad ae rhe seni 40-48, 84-

What are questions of law as distinguished
from questions of fact..18, 21, 22, 23, 45

269
THE COURT OF APPEALS.

(References are to pages.)

When to be raised, in order to permit re-

view by Court of Appeals......... 47, 48
How to be raised; necessity for exception
achuaiee 44 a hawewnenioee ome wacaved oe 43, 77
Failure to give effect to uncontroverted
fact not found in the decision does not
raise a question of law. .18, 21, 22, 23, 45
Reversal stated to be on the facts, but
really on the law..............00-. 15-18
Only questions of law may be certified. .
Diseaveheerat han aun ane Wes eniatese oe sane aeereenete ee 58, 172
Legislature.
Power to restrict jurisdiction.......... I
Power to enlarge jurisdiction.......... 2
Mandamus.
Review of final order....... 30, 51, 73, 74
Review of order reversing final order in
mandamus after trial by jury of issues
raised by alternative writ and return.. 37
Review of exercise of discretion........
er er on rar per ere 30, 51, 73, 74
New Trial.
See Orders granting new Trials.
Opinion of Appellate Division.
Not to be considered in determining
whether decision was on the law or the
PAGES reek ware Male ame ten oe de oe 14, 25
THE COURT OF APPEALS.

(References are to pages.)

Reference to opinion in order of Appellate
Division, held insufficient to show that
reversal was on the facts as well as the
law

snot ga au MRS Cae Ree 25
Rule as to reference to opinion on appeals
from intermediate orders............ 173
Order, Form of.
Reversal of referee or court without jury
tho aaRaeod re anat gracias a ha eine iene Rang Ta 8
Presumption as to the grounds of deci-
SION 4G kG ee i paad Kviaen euee ls 14, 25, 26
Reversal on the law and the facts........
LBeee Cees teeseuN eee ee 13, 14, 15, 32
Reversal of final order................ 30
Reversal of final order in mandamus and
CertiOranl skeen seas 30, 51, 73, 74

Reversal of judgment in jury causes. . .32-37

Reversal of judgment in mandamus after
frial of issues arising on alternative
writ and return...................

Reversal of judgment in criminal causes
Affirmance of judgment...............
Affirmance of judgment when court is

unanimous ........2 eee eee eee 81,
Affirmance of final order when court is
unanimous ...... eee eee eee

Order allowing appeal from final judg-
ment in cases which, under sec. 191 of
B71

39
40

82

99
THE COURT OF APPEALS.

(References are to pages.)

Code Civ. Pr., are not appealable as of

BUDA astra ai etie coe sete aaitapsanarleca re mnceaeate
Intermediate order ............0000 ees
How exercise of discretion should be neg-

AHVED ode Sade BRE Year eees 69-73, 173

Order allowing appeal from intermediate
order or interlocutory judgment. ..168-173

Form of certificate ................ 168-173
Summary of rules regulating form of or-
ETS: owaiee one SEH eee Meee AS 193
Order granting new trial on exceptions.
WITALE MSi. Sirastos es eie anata tates cava puevicnatelalat eran 147

Includes orders granting new trial where
motion for new trial is made on excep-

tions after interlocutory judgment.... 149
Stipulation for judgment absolute...... 149
In quo warranto proceedings.......... I51
Original jurisdiction of Court of Appeals.... 178
Parties, who may appeal................. 181
Personal injuries, actions for. When appeal
in such actions may be heard 157, 158
Allowance of appeal.............. 157, 159
Effect of allowance...............00- 161
How appeal may be allowed........... 161
When appeal may be allowed..167, 168, 184
Pro forma decisions. Review of.......... 179
Qualifications of Judge of Court of Appeals. .
ee ee eee ee 3,4, 5
How far subject of waiver............. 5

292
THE COURT OF APPEALS,

(References are to pages.)

Questions.
How -ceriified - cicacsdaicaayex 168, 169, 170
Form of certificate........... 169, 170, 171
Only questions of law may be certified. .
(RavALA MRSA PRE Wine Rey Rae ERE Ss 58, 172
Reargument, when allowed........ 190, I9I, 192

Record evidence.
When Court of Appeals may consider rec-

ord evidence not in the return........ 48
Remittitur.
Etech. Of MNe 32:0 vassecubeus spans 189
Rea OE asco d Soares eo peeapeuwr wns 190
Restrictions on jurisdiction.
POWer 16 IMO06E ii vaek wet eaeasiau ee I
Imposed by constitution .............. 6
Imposed by stattite ..20syeneeeie eee es 7
Return to Court of Appeals......... wee. 186
When to be filed ................... 187
Effect of failure to file............... 187
What return should contain............ 188
Reversal.
Review of reversal of judgment of court
OF TeferOe: wie sd ede a eee weeaven ewer 13-30
Review of reversal of final order....... 30
Review of reversal in jury causes...... 32-39
Review of reversal in criminal causes... 39
What questions will be considered for pur-
DO Gr ear esebarrrewarerenuoriwe 44-48
THE COURT OF APPEALS.

(References are to pages.)

Implication of findings for purpose of..
sits aace Penney una a aaashe Seten seca ahd 44-46, 86, 93, 94

Services, action for.............0.000. 163, 164
When appeal in such actions may be heard 163
Allowance of appeal ................. 161
Effect of allowance.............. 161, 162
How appeal may be allowed.......... 161
When appeal may be allowed. ..167, 168, 184
What is an action for services.......... 164

Short decision, effect of............ 20, 45, 87

Presumptions supporting... ..87, 88, 89, 93

Special Proceedings.
See Final Order.

Stipulation for judgment absolute........ 149-155
When necessary ........ 0.00 e eee eee 149
Cannot be dispensed with by Appellate Di-

vision on appeal from order granting

new ‘trial’ os. sswewe ademas weds eae ‘I50
Eifect OF iccsswuee ee etoke de ones 152, 153
In quo warranto proceedings.......... 151
Withdrawal of appeal after............ 155

Supreme Court.
What applications must be made to Supreme
Court after appeal to Court of Appeals 188

Time.
Within which to appeal............ 182, 183
Within which appeal must be allowed..

Bd Grancehe ete OS ttle BE RE 167, 168, 184
THE COURT OF APPEALS.

(References are to pages.)

Unanimous Affirmance.
Review of unanimous judgment of affirm-

TICE, ee tavnvectrat aleavamnue a tiatcae aan connie 81
What is a judgment of affirmance...... 82
When affirmance is unanimous...... 82, 83
Form of order, how fact of unanimity
must be shown ................4. 81, 82
Review of unanimous affirmance of referee
or court without jury............ 84-100
Effect of short decision upon power to re-
VIEW ahes Axo eae Mies 87
Effect of express findings........... 93, 94
Rule applicable to findings whether express
OM IMP ed icc da dacain sek meee enn enw BS 95
Illustrations of application of rule....97, 102
Review of unanimous affirmance of final
OL EP parks deen a tun a aia we 99
Review of unanimous affirmance of judg-
ment in jury causes............. 100, 105
What exceptions are still reviewable not-
withstanding unanimous affirmance... 104
What is a verdict directed by the court. .
debdsbiecal al wah aeiitanler gua tesshdrasteAes ee eee was 105, 106
Undertaking, action on..............0000- 164
See Bond.
Undertaking for costs.
Necessary to perfect appeal............ 186
Effect of failure to file.............0.. 186
Wages: SCION Ot wcusvs ti eeewssaeuws ees 163

See Services. 278
THE COURT OF APPEALS.

NOTE.

Since this book went to press, the short form of
decision has been abolished by the following statute
(1. 1903, c. 85).

CHAPTER 85.

Awn Act to amend the Code of Civil Procedure,
in relation to the decision of the court or report
of a referee and the review thereof.

The People of the State of New York, represented
in Senate and Assembly, do enact as follows:
Section 1. The Code of Civil Procedure is here-

by amended by inserting therein an additional sec-

tion to be known as section nine hundred and nine-
ty-three, and to be read as follows:

Sec. 993. Upon the trial of an issue of fact by a
referee or by a court without a jury, a finding of
fact without any evidence tending to sustain it, is
a ruling upon a question of law within the mean-
ing of the last section. The Appellate Division of
the Supreme Court shall, on appeal from a judg-
ment entered on the report of a referee, or the de-
cision of a court on such trial, review all questions
of fact and of law, and may either modify or affirm
the judgment or order appealed from, award a new

277
THE COURT OF APPEALS.

trial, or grant to either party the judgment which
the facts warrant.

Sec. 2. Section ten hundred and twenty-two of
the Code of Civil Procedure is hereby amended so
as to read as follows:

Sec. 1022. The decision of the court or the re-
' port of a referee upon the trial of the whole issues
of fact shall state separately the facts found and the
conclusions of law, and direct the judgment to be en-
tered thereon, which decision so filed shall form
part of the judgment roll. In an action where the
costs are in the discretion of the court the decision
or report must award or deny costs, and if it
awards costs it must designate the party to whom
the costs to be taxed are awarded.

Sec. 3. This act shall take effect September first,
nineteen hundred and three.

278
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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