Van Nostrand v. Van Nostrand

Gaynor, J.: The notice of appeal herein was from an order made by the Special Term of the Supreme Court amending the judgment herein, and entered June 8th, 1889. We dismissed the appeal for the reason that the time to appeal had been limited to 30 days by service of notice of entry of the order in 1889, and also for the reason that there had been no substitution of the heir, devisee or executor (as the case might be) in the case of deceased parties who would be respondents if alive when the notice of appeal was so filed in 1907. A history of the case is given in our opinion (121 App. Div. 262). The appellant has caused the county clerk to enter on our order of dismissal what is called a judgment of dismissal, and has taken an appeal to the Court of Appeals from such judgment of the county clerk. A motion to vacate such judgment was denied by an order of the Special Term of the Supreme Court, and this appeal is from that order. Our order dismissing the appeal from the said order amending the judgment, and entered in 1889, is not appealable to the Court of Appeals. Appeals to the Court of Appeals may be taken as of right only from “ judgments or orders finally determining actions or special proceedings ” (excepting orders granting new trials on exceptions), which means, as has been authoritatively determined, (1) final judgments determining actions, and (2) final orders determining special proceedings, on the merits. It is not enough that the action or special proceeding be ended by the judgment or order; it must be determined on the merits (Van Arsdale v. King, 155 N. Y. 325). Eow neither our order nor the county clerk’s'judgment, if it have force, determines this action in the sense above stated. The merits of the appeal from the order of 1889 have not been determined by us. The question is one of strict right, i. e., of whether the case be one in which the right of appeal to the Court of Appeals be given. It is said that the later case of Stevens v. Central National Bank (162 N. Y. 253) is a departure from the rule. If it be it does not help the present case. There an appeal from a final judgment was dismissed by the order of the Appellate Division, and the appellant was allowed to enter a judgment on such order and appeal from it [720] to the Court of Appeals. How in the case of an appeal to this court from a judgment, a judgment of affirmance or of reversal, as • the case may be, has to be entered to be appealed from to the Court of Appeals, where such appeal may be taken, as we have seen. But in' the case of an appeal to this court from an order (which is this case), only an order can be made thereon. There is no such thing as entering a judgment’ on our decision except the appeal to us be from a judgment. Only an order may be entered on our decision in the case of an appeal to us from an order. Hor has a county clerk authority to enter any judgment or order which we have not made or directed. The order should be reversed and the motion granted. Woodward, Jenks and Rich, JJ., concurred; Hooker, J., read for affirmance.