Lordi v. People's Surety Co.

Full title: ANTONIO LORDI, Appellant, v . PEOPLE'S SURETY COMPANY OF NEW YORK…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 31, 1911

143 App. Div. 477 (N.Y. App. Div. 1911)

128 N.Y.S. 481

Opinion

March 31, 1911.

Edward M. Grout and Paul Grout, for the motion.

Rosario Maggio, opposed.

Present — INGRAHAM, P.J., McLAUGHLIN, CLARKE, SCOTT and DOWLING, JJ.

PER CURIAM:

The plaintiff obtained a judgment in the City Court which was reversed by the Appellate Term and a new trial granted. (69 Misc Rep. 598.) The Appellate Term allowed an appeal to this court from the order granting a new trial; but the Appellate Term did not require, nor did the appellant file in the City Court, a stipulation providing that if the order should be affirmed the defendant should have judgment absolute.

Section 3191 of the Code of Civil Procedure provides that where the appeal from the Appellate Term to the Appellate Division is from an order granting a new trial in an action in the City Court, the appellant must, with his application for leave to appeal, file an assent on his part that, if the order is affirmed, judgment absolute may be rendered against him. Section 3194 provides that upon an appeal from an order granting a new trial, on a case or exceptions, if the appellate court determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant. The provision of section 3191 is a limitation of the right to appeal. No appeal from an order granting a new trial can be taken unless, in addition to the allowance by the Appellate Term, the appellant files an assent on his part that, if the order is affirmed, judgment absolute may be rendered against him. In the case of an appeal from the Appellate Division to the Court of Appeals from an order granting a new trial, it was held that the Court of Appeals has no power to review an appeal from an order granting a new trial on exceptions, unless the appeal is accompanied by the stipulation for judgment absolute in case of an affirmance and that the Appellate Division has no power to dispense with the stipulation by allowing that appeal and certifying questions of law for review. ( People v. Gaffey, 182 N.Y. 257; New York Central H.R.R.R. Co. v. State of New York, 166 id. 286; Mundt v. Glokner, 160 id. 571.) The case of Hart v. North German Lloyd S.S. Co. ( 108 App. Div. 279) was an appeal from the determination of the Appellate Term reversing a judgment of the Municipal Court, and in the opinion in that case attention was called to the fact that upon an appeal from an order of the Appellate Term reversing a judgment of the City Court the appellant was required to file such a stipulation; but there is no provision in relation to an appeal from an order of the Appellate Term ordering a new trial in an action tried in the Municipal Court.

It follows, therefore, that no appeal could have been allowed without the stipulation, and this appeal must, therefore, be dismissed.

Motion granted, with ten dollars costs.

PER CURIAM:

Motion to dismiss appeal granted, with ten dollars costs.