Opinion
Argued October 1, 1901
Decided October 11, 1901
Charles Gibson Bennett and Theodore F. Humphrey for appellant.
William Lindsay and Edwin L. Kalish for respondent.
This is an appeal from an order denying the appellant's motion to set aside the attachments and judgment granted and entered in this action. Manifestly, the appellant's motion was in the action, and its purpose was to obtain an order therein. ( Van Arsdale v. King, 155 N.Y. 325; City of Johnstown v. Wade, 157 N.Y. 50.) That fact is not only obvious from the record, but it is equally obvious that the appellant understood and intended it as such. The record discloses that he appeared in the action specially for the purpose of making the motion, and that he never attempted to institute any special proceeding to secure the relief sought. Moreover, in his notice of appeal to the Appellate Division, which was entitled in this action, in describing the order from which the appeal was taken, he stated that he appealed from an order "entered in this action on the 30th day of April, 1900, denying the motion herein to vacate and set aside the warrants of attachments and * * * judgment in this action."
Therefore, as the order appealed from was an order in an action, and was neither a final judgment nor a final order in a special proceeding, it was not appealable to this court without the allowance of the Appellate Division, which has not been obtained. (Code Civil Procedure, § 190.)
It follows that the appeal must be dismissed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN and LANDON, JJ., concur.
Appeal dismissed.