Opinion
January 6, 1909.
Frederic C. Rupp and Louis E. Desbecker, for the appellant City of Buffalo.
Dana L. Spring, for the appellant International Railway Company.
John T. Ryan and Stephen V. O'Gorman, for the respondent.
This action had its origin in the Municipal Court of the city of Buffalo. The first trial in that court resulted in a nonsuit, which was affirmed on appeal to the Erie Special Term of the Supreme Court. On appeal to this court the judgments of the Special Term and Municipal Court were set aside and a new trial in the Municipal Court directed, with costs in all the courts to the plaintiff to abide the event. ( Miller v. City of Buffalo, 126 App. Div. 923.) On the new trial plaintiff had judgment, June 20, 1908, against both defendants for $250 damages and $30.10 court and statutory costs of that trial. A transcript of this judgment was filed in the clerk's office of Erie county June 23, 1908. On June 24, 1908, both defendants duly perfected an appeal from the judgment of the Municipal Court to the Supreme Court, Erie county, and demanded a new trial therein. On the same day, but after this appeal by defendants had been perfected, plaintiff obtained the order and entered the judgment, from which this appeal is taken.
The statute regulating appeals from judgments of the Municipal Court of Buffalo, in force when the appeal from the judgment of that court was taken, provides, among other things, that appeals may be had from judgments of said court to the Supreme Court, Erie county, upon questions of fact or of law in the same manner and with like effect as appeals are now had by law to the County Court from Justices' Court judgments. (Laws of 1908, chap. 387, adding to Buffalo charter [Laws of 1891, chap. 105], § 552.) There is no question but that prior to the granting and entry of the order and judgment now appealed from defendants had both properly perfected an appeal to the Supreme Court, Erie county, from the Municipal Court judgment which entitled them to a new trial of the action in the Supreme Court. The effect of this appeal upon the judgment of the Municipal Court is like that upon a judgment of a Justice's Court when an appeal is perfected by which an appellant is entitled to a new trial in County Court. (Buffalo charter, §§ 552, 554, as added supra.)
When defendants had perfected their appeal to the Supreme Court the action was at once removed to that court, although the ten days provided for by section 3071 of the Code of Civil Procedure after filing the return of the lower court before the action shall be deemed at issue in the appellate court had not expired. ( Cutting v. Jessmer, 101 App. Div. 283.)
The appeal having been perfected there remained no judgment in favor of plaintiff effective for any purpose as a determination of the issues involved in the action. ( Burns v. Howard, 9 Abb. N.C. 321, 324; Crandell v. Bickerd, 32 Misc. Rep. 258, 261.)
On the first appeal to this court plaintiff was awarded costs in all courts to abide the event. The event which was to determine her right to tax these costs against defendants was such a determination in her favor as a result of the new trial of the issues involved in the action as would entitle her to costs of the new trial. ( Snyder v. Collins, 12 Hun, 383; New v. Anthony, 4 id. 52; First National Bank of Meadville v. Fourth National Bank of New York, 84 N.Y. 469; Carpenter v. Manhattan Life Assurance Co., 24 Hun, 194.) But the new trial had in Municipal Court has not resulted in any effective or enforcible determination of the action. The action itself has not yet eventuated. No new trial has been had by which it has in any proper sense of the expression been determined. The "event" entitling plaintiff to tax the costs awarded on the former appeal has not yet occurred.
It follows that the order and judgment awarding those costs was premature and should be reversed, with costs.
All concurred, except SPRING, J., not sitting.
Judgment and order reversed, with costs.