Opinion
June, 1905.
H.H. Flemming and Amos Van Etten, for the appellant.
John D. Eckert, for the respondent.
This appeal should be dismissed. The right to appeal to the Appellate Division in a special proceeding is given by sections 1356 and 1357 of the Code of Civil Procedure, which are as follows:
"§ 1356. Appeal from order made in the same court. — An appeal may be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made in a special proceeding, at a Special Term or a Trial Term of the Supreme Court; or made by a justice thereof in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge and transferred to or continued before him.
"§ 1357. Idem; when made by another court or judge. — An appeal may also be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made by a court of record, possessing original jurisdiction or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge and transferred to or continued before the judge who made the final order. But this section does not apply to a case where an appeal from the order to a court other than the Appellate Division of the Supreme Court is expressly given by statute."
An appeal is not allowed thereby to the Appellate Division from an order of the County Court, made upon an appeal from an order in a special proceeding instituted before a justice of the peace or the City Court of the City of Kingston. ( Matter of Rafferty, 14 App. Div. 55.) Section 2260 of the Code of Civil Procedure authorizes an appeal from a final order made as prescribed in title 2 of chapter 17 of the Code of Civil Procedure to the same court within the same time and in the same manner as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding officer and with like effect. By its express terms the right to an appeal is given from the final order prescribed in that title. The final order prescribed in that title is defined in section 2249 of the Code of Civil Procedure and is the final order made upon the trial. No right of appeal is given by said section 2260 from the order of reversal in the County Court in this proceeding.
One appeal only is contemplated in a summary proceeding unless upon a final determination of this court upon an appeal from a final order made in a proceeding instituted before a county judge a further appeal is allowed to the Court of Appeals as provided by section 2261 of the Code of Civil Procedure.
The appeal should be dismissed, with ten dollars costs and disbursements.
All concurred.
Appeal dismissed, with ten dollars costs and disbursements.