Garsia v. Burch

Per Curiam. This action was brought in the District Court of the city of Hew York for the sixth judicial district. Upon a trial judgment was awarded in favor of the defendant, from which judgment an appeal was taken to the General Term of the Court of Common Pleas for the city and county of Hew York. The minutes of the General Term show that on the 5th day of February, 1894, an opinion was rendered by Mr. Justice Boolcstaver, which was concurred in by the other justices sitting at that term, directing an affirmance of the judgment, with costs. Through some inadvertence no order of affirmance was ever entered, and this [746] motion is now made to the Appellate Term for the settlement and entry of such an order. We think that the objection to our authority to- entertain this motion is well taken, , Until an order of affirmance should be en- . tered, the matter was still pending in. the General Term of the Oourt-of Common Pleas, and was, therefore, undisposed of business of that branch of the court at the time when the consolidation of , the court took place. By section 2 of article 6 of the Constitution it is provided, among other things, that “ from and after the last day of December,. 1895, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Terms, and by the General Terms -of the Court of Common Pleas for the city and county of Hew York,” etc. • This constitutional provision was supplemented by an act of the Legislature, entitled “An act in relation to the Supreme) Court in the first judicial district and the Appellate Division thereof in the first department.” Chap. 553, Laws of 1895. By section 17 of that act it is provided that “ All the powers conferred by law upon the General Term of - the- Supreme Court in the first judicial department,, upon the General Term of the Superior Court of the city of Hew York, and upon the' General Term of the Court of Common Pleas for the city and county of Hew York, are conferred upon, and vested in the Appellate Division of the Supreme Court in the first department. And ail the powers conferred by law upon the Supreme Court in the first judicial district, upon the Superior Court, of the city of Hew York, and upon the Court of Common Pleas for the city and county of Hew York, other than as courts of first instance in actions and special proceedings, are also conferred upon and vested in said Appellate Division.” It seems plain, therefore, that whatever .unfinished business remained in the General Term of the Court of Common Pleas at the time that court was abolished was transferred to the Appellate Division of the.Supreme Court. The Appellate Term (so-called) of the Supreme Court exists by virtue of an exercise- of authority conferred by the Constitution upon the Appellate Division (Art. 6, § 5), which provides that “ appeals from inferior and local courts now heard in 'the Court of Common Pleas for the city and county of Hew York, and the Superior Court’ of -Buffalo-, shall be heard in the Supreme Court in such manner and by such justice or justices as the Appellate Divisions in the respective departments -which include Hew York and Buffalo shall direct, unless otherwise [747] provided by the Legislature.” The Appellate Division in the first department has made its designation of three justices to hear such appeals, and has'made rules governing their action. We are unable to discover any authority conferred upon us to take any action giving formal effect to a decision upon an appeal which was not taken to the Supreme Court and which was not heard by us. The decision in the case of Biel v. Randell, 20 Misc. Rep. 335, was based upon an entirely different state of facts. Relief should be sought at the Appellate Division in this department, which has succeeded to the powers of the General Term of the Court of Common Pleas. The motion must, therefore, be dismissed for lack of power. Motion dismissed. Present: Beekman, P. J., Gildersleeve and Giegerich, JJ. Motion dismised.