Opinion
November, 1910.
Geo. H. Corey, for appellant.
George A. McLaughlin, for respondents.
The order below is based on a misapprehension of the nature of an appeal to the Appellate Division from this court. The appeal, if allowed, is not from the judgment of the City Court that was reviewed by the justices holding the Appellate Term, but from their determination of the appeal. Code Civ. Pro., § 1344; Lesster v. Lawyer's Surety Co., 50 A.D. 181, 185. Whether there shall be such an appeal rests not with the Appellate Term, but with the justices who determined the appeal, or, on their refusal, with the justice of the Appellate Division to whom application may be made.
It is entirely competent for those justices to grant a stay of proceedings pending the application. Stern v. Barrett Chemical Co., 124 A.D. 377, 381. But no other judge or court has that power. The appeal from the Supreme Court to the Court of Appeals, by virtue of section 191, subdivision 2, of the Code of Civil Procedure, is taken from the judgment of affirmance and not from the determination of the Appellate Division; hence section 1310 is not made applicable to appeals from the determination of the Appellate Term by section 3192. In the case of Genet v. D. H.C. Co., 113 N.Y. 472, relied upon by the respondents, the order appealed from was not a mere stay of proceedings, which the Special Term had unquestioned power to grant (Code Civ. Pro., § 1371), but was an order suspending the operation of a judgment in an equity case, and was justified by the Court of Appeals as an exercise of the equitable jurisdiction of the court, as will appear from this sentence, which was omitted from the body of the quotation from that case in respondents' brief, without indicating the omission: "While it may be said that the order, in some sense, interferes with the judgment, by postponing its enforcement, we think this was within the competency of the Special Term in the exercise of its equitable jurisdiction." The omission of this sentence from the quotation may have been unintentional, but counsel should verify quotations in their briefs, so that the court may have some degree of confidence in their accuracy.
When the remittitur of this court came down to the City Court, that court had no power except to enter the judgment in accordance with the determination of this court and enforce the judgment. Typothetae v. Typographical Union, 138 A.D. 295.
Order appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
SEABURY and BIJUR, JJ., concur.
Order reversed and motion denied.