Pascocello v. Brooklyn Heights Railroad , 56 N.Y.S. 177 ( 1899 )

Leventritt, J.

The plaintiff instituted this action in the Municipal Court of the city of Hew York, borough of Manhattan, for the second district, to recover from the defendant corporation damages for personal injuries.

At the time of the commencement of the action the plaintiff was and he has since continued to be a resident in that district. The defendant, claiming to transact its general business within the borough of Brooklyn, and having no agency or office for that purpose in the borough of Manhattan, made a motion to transfer the cause to the first district of the borough of Brooklyn. From the order made upon the denial of that motion the defendant has taken an appeal, which the plaintiff moves to dismiss upon the ground that this court has no jurisdiction to entertain it.

The order sought to be reviewed is an interlocutory order.

The jurisdiction of this Appellate Term over appeals from Municipal Courts exists solely by force of statute. Sinsheimer v. N. Y. C. & H. R. R. R. Co., 21 Misc. Rep. 45.

It is provided by section 1367 of the charter, creating those courts, that: “An appeal from a judgment rendered in the municipal court of The City of New York, may be taken to the supreme court in the cases and in the manner prescribed in articles first and second of title .8 of chapter 19 of the code of civil procedure.”

Those provisions of the Code applied to appeals from the District Court and are now, by section 1367 of the charter, made applicable to appeals from the Municipal Court. They did not permit appeals from any orders of the District Court. Wensley v. Randolph, 9 Misc. Rep. 457; Nicholson v. Moriarty, 13 id. 244.

It required, therefore, special statutory enactment to invest the appellate court with power to review appeals from, orders.

The Laws of 1896, chap. 748, conferred authority upon the appellate tribunal to entertain appeals from certain specified orders of the District Court. This court has only the same limited jurisdiction with respect to orders of the Municipal Court.

By section 1 of that chapter it is provided that: “An order of a justice opening a default and setting aside, vacating or modifying a judgment entered thereon, or an order setting aside the verdict of a jury and vacating or modifying a judgment entered thereon, or an order vacating or modifying a judgment rendered by a justice without a jury, shall recite and contain the grounds for the order, and from the order an appeal shall lie as from a judgment in said court.”

The orders enumerated are the only ones appealable and are limited to such as are subsequent to trial or judgment.

The order under consideration is interlocutory, made before trial and cannot be reviewed in this court. Robb v. Osgoody, 20 Misc. Rep. 622; Sinsheimer v. N. Y. C. & H. R. R. R. Co., 21 id. 45; Rosenthal v. Grouse, 12 Daly, 532; Kraetzer v. Thomas, 23 Misc. Rep. 329.

The motion to dismiss the appeal must be granted.

Motion to dismiss granted, with $10 costs to the respondent.

Freedman, P. J., and MacLean, T., concur.

Appeal dismissed, with $10 costs to respondent.