Farrington v. O'Conner , 6 Daly 209 ( 1875 )

Joseph F. Daly, J.

In the case of Heath v. Hubbell, decided at this term (ante, p. 183), we held that an order transferring a cause from any other court of record in the city to the Marine Court for trial, pursuant to the act of 1872 (L. 1872, ch. 629, § 3, subd. 12), if such order of transfer were made ■ upon the consent of all the parties to the action, was regular and valid, and operated to divest the court whence the action proceeded of its jurisdiction over such cause, and to vest the Marine Court with exclusive jurisdiction over it, and that the statute authorized a recovery to as large an amount in such action in the Marine Court as might have been had in the court from which it had been transferred.

The same reasoning applies, and the same conclusion was reached by us in respect of transfers of causes from other courts of record to the Marine Court, pursuant to the act of 1874 (L. 1874, ch. 545, § 4), providing the order for the transfer of the cause be made upon the consent of all the parties to the litigation.

The present action was commenced in the Superior Court of the city of Mew York to recover $10,000 damages for assault and battery, and issue joined therein. On the written consent •of both parties, an order was made in said court, on Sept. 4, 1874, transferring said action to the Marine Court for trial. It was there tried, and a verdict rendered for plaintiff for $5,000, and judgment thereon entered in his favor. A new trial was, however, granted by the special term, and plaintiff appealed to the general term of the Marine Court from the order granting the new trial; but the general term, on the coming on of the appeal for hearing, ordered as follows : “ That this action, with all the proceedings therein had in this court, including the said •order appealed from, be, and the same hereby are stricken from the records of this court, without costs to either party, for the reason that this court has acquired no jurisdiction thereof, and this court declines, for that reason, to render its judgment upon any questions presented on this appeal.”

From the conclusions reached in Heath v. Hubbell (supra), it will be seen that the Marine Court had full jurisdiction of this action, and the general term of the Marine Court should have heard the appeal and disposed of it upon its merits.

There can be no doubt of the appealability of the order made by the general term in this case. Appeals lie to this court from an “ actual determination” at such general term (L. 1874, ch. 545, § 9). Although it was not a reversal nor affirmance of the judgment below, it effectually prevented the enforcement of it, and deprived plaintiff of his judgment and of a retrial as well. By the sweeping terms of the order the action was wholly determined and ended, and plaintiff is not to be deprived of his right to review the decision which cuts off his rights, because it has been put in a novel and peculiar form by the court which rendered it.

The order appealed from should be reversed, without costs, and the action remitted to the Marine Court, with directions to proceed and hear the appeal from the order granting a new trial upon the merits (L. 1875, ch. 479, § 43, subd. 3).

Charles P. Daly, Ch. J., and Loew, J., concurred.

Ordered accordingly.