Schloss v. Wilson

Per Curiam.

The plaintiff appeals from a judgment of the Municipal Court dismissing the action and also setting aside the service of the summons and complaint, and also states in his notice of appeal that he appeals from an order entered on March 27, 1911, sustaining the traverse of the defendant and setting aside the service of the summons. Standing alone, an appeal from an order of this kind will not lie, as it is not one of those orders enumerated in the Municipal Court.Act from which an appeal can be taken in the first instance. Lyons v, Mulvihill, 128 N. Y. Supp. 653, It was, however, evidently the intent of the plaintiff to appeal from the judgment and bring up for review the said order. This may be done (¡M¡un. Ct. Act, § 311), and the notice of appeal in this case may be so regarded. The return from the judgment is not properly before' this court, as it has not been settled and allowed by the trial justice as required by section 318 of the Múnicipal Court Act. It is only in cases of appealable orders that the settlement before the trial justice is not necessary (Guttenberg v. Taibbi, 67 Misc. Rep. 426; N. Y. L. J. March 15, 1910); and an order not appealable can only be reviewed upon án appeal from a judgment. The return must be sent back for settlement and allowance.

Return remitted to the lower court for settlement and allowance by the trial «justice.

Present: Seabuby, Guy and Cohalan, JJ.

Return remitted to lower court.