Duckworth v. Cunningham

Full title: WALTER F. DUCKWORTH, Appellant, v . MARGARET M. CUNNINGHAM, Respondent

Court: Supreme Court, Appellate Term

Date published: Feb 1, 1899

26 Misc. 403 (N.Y. App. Term 1899)

56 N.Y.S. 191

Opinion

February, 1899.

Epstein Bros., for appellant.

Peter A. Sheil, for respondent.

FREEDMAN, P.J.

The appeal in this case being from a judgment of the Municipal Court, first district of the borough of The Bronx, the respondent moved for a dismissal of the appeal on the ground that no appeal to this court lies from the judgment in question and that the appeal should have been taken to the Appellate Division of the Supreme Court in the second department.

It is not claimed that the court below was without jurisdiction, and no constitutional question as to such jurisdiction is involved. The case, therefore, differs essentially from the case of Irwin v. Metropolitan Railway Co., 25 Misc. 187, in which case a constitutional objection to the jurisdiction of the trial court was interposed at the commencement of the trial.

In the case at bar the question simply is, whether the first district of the borough of The Bronx is within the first or the second judicial department. If in the first department this court has jurisdiction to entertain the appeal. If in the second department this court is without jurisdiction. The question has been practically decided by the Court of Appeals in People ex rel. Henderson v. Board of Supervisors, 147 N.Y. 1.

The effect of that decision is that the territory now embraced within the boundaries of the first judicial district of the Municipal Court, borough of The Bronx, remains, notwithstanding its former annexation to the city and county of New York, part of the twenty-second senate district and of the second judicial district and department.

The motion for the dismissal of the appeal should, therefore, be granted, with $10 costs.

LEVENTRITT, J., concurs.

MacLEAN, J. (concurring).

It is objected that this appeal will not lie because not taken in the judicial department embracing the district wherein the action was brought. And the objection is good, because the territory of the first district of the borough of The Bronx lies within the second judicial district and department of the Supreme Court. People ex rel. Henderson v. Board of Supervisors, 147 N.Y. 1.

Appeal dismissed, with $10 costs.