Sperling v. Boll

O’Brien, J.: The single question for our determination is as to whether, after an appeal has been dismissed by this court for failure to serve a case and prosecute the appeal as required by the rules, some or all of the original appellants, without obtaining leave, can again appeal and upon serving a case insist , upon its being heard. Our first impression would be that no such practice could be tolerated. But it is insisted that there is authority for such practice, and reliance is placed upon the case of French v. Row (77 Hun, 387) for the proposition that the dismissal of an appeal is no bar to a subsequent appeal. It was therein said: “ The respondent’s claim that this order" cannot be reviewed on this appeal, because a former appeal was taken and dismissed by this court, cannot, we think, be sustained. In Elliott’s Appellate Procedure (§ 535) it is said: ‘ The effect of the dismissal of an appeal is, as a general rule, to leave the case as if there had been no appeal. An order of dismissal does not preclude a second appeal.’ The dismissal of an appeal for want of prosecution is not, in judgment of law, an affirmance of the judgment appealed from. (Watson v. Husson, 1 Duer, 242.) In that case it was in substance held that the only effect of such a dismissal was to replace the judgment in its former condition, leaving its merits still open for examination upon a second or further appeal. That case was affirmed in Drummond v. Husson (14 N. Y. 60), where the court said: 'A dismissal of the appeal for want of prosecution is clearly not an affirmance of the judgment. This court has decided nothing whatever in respect to the validity of the judgment.’ The principle of this case was reaffirmed in Palmer v. Foley (71 N. Y. 106, 109). (See, also, Kelsey v. Campbell, 38 Barb. 238; Blake v. Lyon & Fellows Manufacturing Co., 75 N. Y. 611; Culliford v. Gadd, 135 id. 632.) ” There is nothing, however, in that case or the authorities upon which it is based to sustain the appellants’ position here, viz., that after an appeal has been dismissed a second appeal can be taken without leave and without having the appeal reinstated; or, differently [66] stated, that, the court, having once dismissed it, is powerless to do aught except upon such second appeal to hear it. What was under discussion in French v. Row (supra) was the binding effect in the way of an adjudication of an order dismissing an appeal. It has never been claimed that such an order is binding or conclusive upon the merits, and that if the appeal, within the rules of practice, was properly presented to the court again, the court would be precluded by reason of its former' action from hearing the appeal on the merits. The effect of a dismissal, however,, is well expressed in a subsequent part of the section (535) of Elliott’s Appellate Procedure, quoted in French v. Row (supra), to the effect that “ the dismissal of the appeal takes the case and the parties out of court.’ It is of course competent for the court to permit a reargument of the motion to dismiss to be made and to restore the case to its original position and - hear the second appeal, provided the time to appeal has not expired, and all that was formerly done was to dismiss the appeal for failure to serve the printed papers in time. While it does not appear from the opinion in French v. Row (supra), we must assume that the second appeal was properly brought on, and the question there discussed and disposed of was whether the former dismissal was res acbjudicatq upon the merits, or acted as a bar ¡to a review on the merits. That this is the point intended by that case to be decided is evidenced by an examination of the authorities referred to. Thus, Watson v. Husson (1 Duer, 242) was an action for breach of an undertaking given on an appeal, and it was therein held that an averment in the complaint that the judgment was affirmed is not sustained by the admission of proof that the appeal was dismissed, and that, as the answer, the sufficiency of which was in question upon demurrer, denied the affirmance of the judgment and averred the dismissal of-the appeal, it. was a defense. So, too, in Drummond v. Husson (14 N. Y. 60), which was a similar action upon an undertaking to stay execution on appeal, it was held that,, by reason of the form of the undertaking, the parties thereto were not liable to pay the judgment where the appeal was dismissed. In Palmer v. Foley (71 N. Y. 106) the order directing a reference to ascertain the defendant’s damages sustained by reason of an injunction was held to have been improperly granted where the action in which/ the injunction was obtained was discontinued by stipulation of the parties, and it was [67] held that the liability of the sureties depended upon the terms and form of security, and that upon the facts appearing there was no breach of the statutory undertaking. It will, therefore, be seen, without pursuing the authorities further, that the real point involved in all these cases was as to the binding effect of an order of dismissal as affecting the merits. We agree that a dismissal is not conclusive upon the merits, and if the appeal should subsequently come properly before the court there would be nothing to prevent an inquiry into the merits. This, however, is quite a different.thing from taking a second appeal to the same court, without leave, and insisting that, notwithstanding the court has dismissed the appeal, it is, nevertheless, obliged to go on and hear it, because the appellant, treating the dismissal as a nullity or mere brut-um fulmen, conclii'des that it lias no bearing or effóct upon his rights, and that, though liis case has been dismissed for failure to prosecute it with diligence, he can compel the court to listen to his" appeal whenever he gets ready to present it. As we have found no authority, therefore, which militates against our. first impression, that such practice would he subversive .of all rules and of the authority of the court to regulate the procedure therein, We cannot assent to the proposition for which the appellants contend. The question discussed as to whether the appellants’ time to appeal . had been set running by the proper service upon them of the order appealed from, or by their entry of an amended order and the service' of the notice of appeal, is not material or relevant for the reason that the dismissal was not upon the ground that their time to appeal. had expired, but for failure to print and serve the necessary papers within the time prescribed by the rules. We think, therefore, that the order below was right and should be affirmed, with ten dollars costs and disbursements. Van Brunt, P. J., and McLaughlin, J.,- concurred; Ingraham and Patterson, JJ., dissented.