
    Carling v. Purcell.
    (New York Common Pleas
    General Term,
    March, 1893.)
    In order to perfect an appeal to this court from the final determination of the General Term of the City Court of New York, it is necessary for the appellant to give an undertaking for costs. Chapter 450, Laws of 1890, section 7, which amended section 1341 of the Code of Civil Procedure, so as to dispense with security to perfect an appeal to the Supreme Court from an inferior court, does not apply to appeals from the City Court of New York to this court.
    Appeal from ail order made at Special Term of this court, which dismissed an appeal from the General Term of the City Court of New York to this court, because of appellant’s omission to perfect the last-mentioned appeal by giving security for costs.
    
      Thomas J. Farrell, for plaintiff (appellant).
    
      Edw. IF". S. Johnston, for defendant (respondent).
   Bischofe, J.

Plaintiff sought to appeal to this court from a judgment of the General Term of the City Court of New York, which affirmed a judgment for defendant. To that end he served his notice of appeal, but did not give the security required to perfect the appeal by section 1341 of the Code of Civil Procedure, before its amendment by chapter 450, Laws of 1890. Defendant thereupon, under the provisions of Rule 11 of the special rules, applied to this court at Special Term, and on notice to plaintiff, for an order dismissing the appeal. This order was granted, and from it the present appeal is attempted to be taken.

Section 1341 of the Code of Civil Procedure, as originally enacted (see chap. 1, Laws of 1876), provided that upon an appeal to the Supreme Court from an inferior court, security must be given to render it effectual, and the security intended is the same as provided for in ease of an appeal to the Court of Appeals. Code Civ. Proc. § 1326; Lane v. Humbert, 16 Daly, 186. Sections 3191, 3194 regulate appeals from the City Court of New York to this court, and section 3192 declares that titles first and third of chapter twelfth of the act of 1880, chapter 178 (comprising §§ 1293-1323, 1340-1345), shall he applicable to such appeals, except as sections 3193 and 3194 may otherwise prescribe. By section 7, chapter 450, Laws of 1890, section 1341 of the Code of Civil Procedure was so amended as to dispense with security to perfect an appeal to the Supreme Court from an inferior court, and the query is, whether or not this amendment applies to appeals from the City Court of New York to this court.

It is a rule which governs the interpretation of statutes that a statute which expressly, or by necessary implication, adopts another, must be deemed to have incorporated the statute adopted ipsissimis vertís, and that future additions/ to or modifications of the latter are not included in the adoption, unless a contrary intention is clearly manifested. Sutherland Stat. Const. § 257; Endlich Interp. Stat. § 85, p. 115 ; Knapp v. City of Brooklyn, 97 N. Y. 520; Matter, etc., of Main Street, etc., 98 id. 454. Section 1341 of the Code of Civil Procedure, at the time of the enactment of section 3192 (May 6, 1880), required security to render the appeal effectual, and as the last-mentioned section contains nothing from which an intention to include future additions to or modifications of section 1341 in the adoption is inferable or apparent, the rule of interpretation referred to precludes the application of the . amendment which dispenses with the security to appeals from the City Court of New York to this court. Hence, to render such an appeal effectual, security must still be given.

Pursuant to the provisions of section 1347 of the Code of Civil Procedure an appeal to the Ceneral Term of a Superior City Court, of which this court is one (§ 3343, subd. 1), from an order made at Special Term, can only be taken when the order (1) grants, refuses, continues or modifies a provisional remedy, (2) grants or refuses a new trial, (3) involves some part of the merits, (4) affects a substantial right, (5) in effect determines the action and prevents a judgment from which an appeal might be taken, or (6) determines a statutory provision to be unconstitutional. Clearly, tlie order dismissing the appeal is not among the eases provided for unless it may be successfully claimed that it affects a substantial right. But the effect of the omission to give the required security was to render the appeal ineffectual and the notice of appeal to tht, court a nullity. Raymond v. Richmond, 76 N. Y. 106 Benedict & Burnham Mfg. Co. v. Thayer, 82 id. 610. No appeal was pending; the order dismissing it was unnecessary; no right whatever of the plaintiff was involved; and the order was for that reason not appealable.

The appeal should, therefore, be dismissed, "with costs.

Daly, Ch. J., and Pbyob, J., concur.

Appeal dismissed.  