Leavitt v. Katzoff

Eeeedmae’, P. J. This is an appeal from an order made by a justice of the Municipal Court denying the defendants’ motion to vacate an order of arrest. A motion to dismiss this appeal was also made, and the motion and appeal were ordered to be heard and considered together. The motion to dismiss the appeal was made upon the ground that the order made in the court below was not appeal-able. The decision of this question, if adverse to the appellants, will dispose of the appeal. The Municipal Court Act (Laws of 1902, chap. 580), has not in terms provided for an appeal such as is here taken, but the appellants urge that, as section 20 of that act provides that the provisions of the Code of Civil Procedure, not in conflict with the provisions of the Municipal Court Act, shall apply to the Municipal Court so far as the same can be made applicable, and that as sections 1340 to 1343 provide for an appeal from an inferior court to the Supreme Court from an order affecting a substantial right, therefore an appeal from an order as made herein will lie and the court has power to hear and determine the same. The Municipal Court is purely a creature of the statute and has no jurisdiction not specially conferred thereby. Under the former statutes applicable to that court it has been held that an appeal from interlocutory orders, or orders other than those expressly enumerated in the statute, would, not lie, and the power of this court to entertain appeals is also purely statutory. Pascocello v. Brooklyn Heights R. R. Co., 26 Misc. Rep. 412. For other instances see Gansevoort Bank v. Altshul, 26 id. 6; Rosenthal v. Grouse, 12 Daly, 529, 532; [28] Jacobs v. Zeltner, 9 Misc. Rep. 455; Schwartz v. Schendel, 23 id. 476; Adolph v. Klein, Id. 701, and Starr v. Silverman, 25 id. 784. Tinder the present law the only orders appealable (§ 311) are those enumerated in sections 253, 254, 255, 256 and 257 of the said act. Moreover I think that section 20 of the Municipal Court Act cannot be construed to confer upon the Municipal Court jurisdiction or authority not given thereto by the act itself. It was clearly not the intent of the Legislature to provide that every section of -the Code of Civil Procedure, not in conflict with the provisions of the Municipal Court Act, could be invoked in aid of litigants in that tribunal, but only such sections thereof, within the limits as above stated, as would aid in carrying into effect its terms. Initiatory action must have first been fixed and determined by the act and then for the purpose and methods of procedure, and to effectuate the final result, sections of the Code of Civil Procedure might be resorted to in aid of, and as auxiliary to, the act itself. To hold otherwise would be in effect extending the jurisdiction and authority of the Municipal Court far beyond the point contemplated by the statute. This court has held that certain sections of the Code of Civil* Procedure might be resorted to, by virtue of section 20 of the Municipal Court Act, in furtherance of the provisions of that act. This want of power may work a hardship, but the remedy is with the Legislature and not in the courts. The motion to dismiss the appeal must be granted and the appeal dismissed. Motion to dismiss appeal granted, with ten dollars costs. Gilderslebve and Greejstbaum, JJ., concur. Appeal dismissed, with ten dollars costs.