Opinion
Argued November 11, 1902
Decided November 18, 1902
Rastus S. Ransom, Edwin C. Ward and William B. McNeice for appellants.
Wheeler H. Peckham and Hoffman Miller for respondent.
We are of the opinion that the notice of appeal to this court was insufficient to effect an appeal from the final order of the Appellate Division modifying the surrogate's decree of September 6, 1901. The appeal was taken directly from the judgment or decree of the Surrogate's Court, which was entered after the decision of the Appellate Division, and not from the order of that court. This procedure was unauthorized, as this court has jurisdiction to review only actual determinations of the Appellate Division. It is true that the appellants in their notice of appeal gave notice of an intention to bring up for review several decrees of the Surrogate's Court, and also the order of reversal entered and filed in the office of the Supreme Court, Appellate Division, in March, 1902. While section 1301, Code of Civil Procedure, provides that where the appeal is from a final judgment, or final order in a special proceeding, and the appellant intends to bring up for review an intermediate order, he must specify the order to be reviewed, still the order sought to be thus reviewed was not only not an intermediate order of the Appellate Division, but was a final order, and could only be brought up by direct appeal. Moreover, as there was in this case no direct appeal from any judgment or final order that was reviewable here, there was no appeal which would justify a notice of the review of any intermediate or incidental order. It follows, therefore, that this court is without authority to review the order of the Appellate Division on this appeal. ( Ansonia Brass Copper Co. v. Conner, 98 N.Y. 574.)
If this were otherwise, and we had jurisdiction to pass upon the question presented, we should be of the opinion that the learned Appellate Division correctly decided the case, and that it should be affirmed.
The appeal should be dismissed, with costs payable out of the portions of the estate to which the appellants Robert B. Craufurd and Lawrence Craufurd are entitled.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and CULLEN, JJ., concur; VANN, J., absent.
Appeal dismissed.