McNamara v. . Goldan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 I think that the appeal in this case is properly before the court, though no leave to appeal has been granted. The action is one of the class in which, under subdivision 2 of section 191 of the Code of Civil Procedure, an appeal cannot be taken to this court from a unanimous decision by the Appellate Division. Technically there has been a unanimous affirmance of the judgment in this case, because under section 1336 of the Code of Civil Procedure and the decision of this court in Leonard v. Barnum (168 N.Y. 41), where the Appellate Division reverses an interlocutory judgment and an order at Special Term is subsequently entered thereon, the unsuccessful party must go through the formality of another appeal to the Appellate Division, though in case of an affirmance he can appeal directly to this court from the judgment of the Special Term. But though the judgment is literally within the terms of section 191 it is not within its spirit. It is only a judgment of affirmance by the Appellate Division that precludes an appeal to this court without leave. Here the determination of the Appellate Division which led *Page 320 to the subsequent entry of the judgment at Special Term was not of affirmance but of reversal. The spirit and intention of the Code is that where both the court of first instance and the Appellate Division unanimously concur in the disposition of an action an appeal shall not be taken as a matter of right. It is only in such a case that the right to appeal is limited. In the case before us the Special Term and the Appellate Division were not in accord, but the first court decided the action one way and the appellate court the opposite way. The judgment of the Special Term was not entered in pursuance of any decision made by it, but solely in compliance with the mandate of the Appellate Division, which directed that unless the plaintiff served an amended complaint the action should be dismissed. The Special Term had no power to examine or pass upon the merits of the case. Therefore, essentially, the judgment was a judgment of the Appellate Division and not that of the Special Term. At this term we have dismissed an appeal in the case of Rahm v. N.Y.C. H.R.R.R.Co. (194 N.Y. 572). In that case, instead of appealing from an adverse judgment, the plaintiff made a motion at the Trial Term to set aside the verdict and for a new trial, and from a denial of that motion appealed to the Appellate Division, where the order of the Trial Term was unanimously affirmed. Thereupon judgment was entered and, under section 1336 of the Code of Civil Procedure, plaintiff brought an appeal directly to this court, as she was empowered to do. We had, therefore, no unanimous judgment of affirmance by the Appellate Division and, technically, no judgment at all of that court. But, by the affirmance of the order denying a motion for a new trial, the Appellate Division unanimously approved of the disposition of the case by the trial court. We held that this was the same in substance as a unanimous affirmance of the judgment of the trial court had a judgment been entered on the verdict in that court and an appeal been taken from that judgment. We followed in that respect the decision inHuda v. American Glucose Co. (151 N.Y. 549, 552), where it is said: "While the judgment of the Appellate Division does not affirm *Page 321 a judgment, it affirms the action of the trial court, and may fairly be regarded as a judgment of affirmance within the meaning of section 191 of the Code." The converse of the principle is equally applicable here. Though the judgment of the Appellate Division is a unanimous affirmance, it does not affirm the action of the trial court, but reverses it, for the judgment which it affirms was that entered solely by virtue of its own mandate. On the merits I agree with the opinion of Judge CHASE that the judgment should be affirmed, with costs.