
    Rudolph Gersman, Respondent, v. David Levy and Robert Friedman, Appellants. (2 cases.)
    First Department,
    May 8, 1908.
    Appeal from Appellate Term—jurisdiction of Appellate Division. '
    The Appellate Division has no jurisdiction to entertain an appeal from an order upon a motion originating at the Appellate Term, dismissing an appeal from an order of the City Court of the city of Hew York.
    Ingraham, J., dissented, with opinion.
    Appeal in each case by the defendants, David Levy and another, from an order of the Appellate Term of the Supreme Court in each case, entered in the office of the clerk of the county of New York on the oth day of March, 1908, one of which orders dismissed an appeal from a judgment of the City Court of the city of New York, entered in the office of the clerk of said court on the 26th day of November, 1907, and the other dismissed an appeal from an order of the said City Court, entered on the 27th day of November, 1907, denying the defendants’ motion for a new trial.
    
      Arnold Charles Weil, for the appellants.
    
      Maxwell C. Katz, for the respondent.
   Scott, J.:

The defendants appeal from orders of the Appellate Term dismissing their separate appeals from a judgment of the City Court, and from an order denying motion for a new trial. The motions to dismiss, of course, originated at the Appellate Term. We are without jurisdiction to entertain the appeals. Appeals to the Supreme Court from the City Court are heard in this department by justices designated for that purpose under the authority of section 5 of article 6 of the Constitution, the term at which such appeals are heard being known as the Appellate Term. From that term there is no.,appeal, except such as is allowed by statute. Section 3191 of the Code of Civil Procedure provides that An appeal to the Appellate Division of the Supreme Court in.the first judicial department may he taken from the judgment or order entered upon the determination of an appeal taken as prescribed in section thirty-one hundred and eighty-eight and thirty-one hundred and eighty-nine of this act,” provided the appeal be allowed as prescribed in the Code. Section 3188 provides that an appeal may be taken to the Supreme Court from a judgment of the City Court, and section 3189 provides that an appeal may he taken to the Supreme Court from certain interlocutory judgments and orders of the City Court. It follows that the only jurisdiction of this court to entertain an appeal from a determination of the Appellate Term is when that determination is of an appeal from a judgment or order of the City Court. There is no provision of law which confers upon us jurisdiction to entertain an appeal from an order dismissing an appeal upon a motion originating at the Appellate Term. It may be. said that the motion appears to have been properly disposed of by the Appellate Term. Appeals dismissed, with ten dollars costs and disbursements in each case.

L aught in, Clarke and Houghton, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

The orders of the Appellate Term were orders of the Supreme Court made upon motions in that court which dismissed appeals from the City Court, thus determining those appeals. Section 3191 of the Code of Civil Procedure provides : “ An appeal to the Appellate Division of the Supreme Court in the first judicial department may be taken from the judgment.or order entered upon the determination of an appeal taken as prescribed in section thirty-one hundred and eighty-eight and thirty-one hundred and eighty-nine of this act, provided such appeal be allowed.” There was here an order of the City Court; an appeal from that order to the Appellate Term ; a dismissal of the appeal which determined that appeal; and the allowance of an appeal to this court by the Appellate Term. I think, therefore, these orders were appealable as by them the' Appellate Term refused to consider the appeals upon the merits and thereby deprived the appellants of a substantial right. If, however, it should be held that section 3191 did not apply upon the ground that the motion upon which the orders were entered originated in the Appellate Term and the orders appealed from were these original orders of the Supreme Court then they were appealable under section 1347 of the Code of Civil Procedure, which allows an appeal (Subd. 3), where it (the order) involves some part of the merits; (Subd. 4) where it affects a substantial right; or (Subd. 5) where in effect it determines the action and prevents a judgment from which an appeal might be taken. These orders certainly involve a substantial right as they refused to allow the appellants an opportunity of presenting their appeal to the Appellate Term and have in effect determined the appeals and'prevented either an affirmance or reversal of the orders appealed from.

I am also inclined to think that the order of the City Court affected a substantial right and that it was appealable to the Appellate Term.

I think, therefore, that the orders should be reversed and the case remitted to the Appellate Term to hear and determine it upon the merits.

In each case appeal dismissed, with ten dollars costs and disbursements.  