
    Robert L. Howey, Plaintiff, v. The Lake Shore & Michigan Southern Railway Co., Defendant.
    (Supreme Court—Erie Special Term,
    January, 1896.)
    Appeal — Motion to dismiss. ,
    Where an appeal to. the Court of Appeals has been taken, and perfected, a motion to dismiss the same can be made only in that, court.
    , Motion by the plaintiff for an order discontinuing the appeal in this action to the Court of Appeals.
    
      George W. Cothran, for plaintiff.
    
      Maurice C. Spratt, for defendant.
   Ward, J.

This action was brought in the Superior -Court of Buffalo in 1894. Issue was joined and the cáse was tried; the plaintiff recovered a verdict of $4,000,- The General Term of the Superior Court of Buffalo reversed the judgment and ordered a new trial. [From that order the plaintiff appealed to the'Court of Appeals, giving the." prpper security to perfect such appeal, and the return to the appeal was filed with the clerk of the ■ Court of Appeals September, 1895. The defendant objects that-the" Supreme -Court has no power to grant this motion, and that" the power to dismiss this appeal . alone rests with the Court of Appeals. By section 1395 of. the Code of Civil Procedure it is providéd that afitef an appeal is taken to another court, the name of the appellate court must be substituted for that of the court below in the title of the action or special proceeding. By section 1326 of this Code the appeal is perfected when the proper undertaking is given.

In Adams v. Fox, 27 N. Y. 640, there was a motion to dis- , miss the appeal after service of the notice of appeal, but the return of the subordinate court had not been filed. The court (Denio, J.) says: “ It is objected that this motion cannot be entertained because the return has not been filed, and it is urged that until this is done this court is not possessed of the case. But we think that when a notice of appeal has been served, and the proper undertaking perfected, the case is so far removed from the subordinate court that we can entertain any application which the case, in its then condition, may render necessary.” And the appeal was dismissed.

In Parks v. Murray, 109 N. Y. 646, there was a motion to dismiss the appeal. It was founded upon the omission to comply with an order of the Supreme Court, made December 19, 1887, directing the appellant to file a new undertaking. Such order was made after the plaintiff had perfected his appeal to the Court of Appeals. The court says: “ The Code provides explicitly that when those acts, are done the appeal is perfected. (§ 1336.) Thenceforward the jurisdiction of this court attaches and the authority of the Supreme Court, except as specially preserved, ends. * * * In this case the motion should have been made before us and not in the Supreme Court.” And the court refused to dismiss the appeal.

In Peterson v. Swan, 119 N. Y. 662, there was a motion in the Court of Appeals to remit the return to the court below for amendment, and the court says: “ It has been frequently held by this court that .although a copy of the record has been filed with the clerk, pursuant to the notice of appeal, yet the court below so far retains jurisdiction of the case as to enable it to make such amendment to the record as it shall deem proper, and to order that the amendment shall be duly certified - to us and filed with our clerk. ■ When thus -filed ' we regard it as part of the original, return and' proceed to hear the case as thus 'prepared.” The court held that the motion 'to remit was- unnecessary / as the court below had power to amend the record, and, therefore, the motion was denied.

In People ex rel. Hoffman v. Board of Education, 141 N. Y. 86,. there was-a motion.for an order directing .the former attorneys of the relator to deliver to her present attorney cer-' tain papers. Appeal had been duly perfected in that action to the Court .of Appeals. Objection was made that the motion should have been made in the Court below. But the objection - was sustained, and the • court says: “ Upon an appeal to this court the record itself is not transmitted, and the case, for all general purposes,•, still remains in the. court of 'original' jurist diction.. A transcript only of the record.is sent here. . In all matters pertaining to the appeal itself, and to the proper hearing thereof, this court has jurisdiction-, and also.- in regard .to all applications which by statute may be made to this court after the taking of án appeal, but as to all .other applications the case is .regarded as still pending in .the court of original jurisdiction, and such applications • should be made to that court.”

In Henry v. Allen, 147 N.Y. 346, the appellant moved for an order directing that "the return be transmitted .to the. Supreme Court, and that the case be remanded-without prejudice to the appeal to the Court of Appeals, for the purpose of enabling him to move -for a new trial" in the court below on the. ground' of newly-discovered- evidence. The court says; “We deny this motion for the reason that the pendency of the appeal is no bar to a motion in the cdurt below for a new trial. We -have heretofore pointed out that upon an appeal to- "this court the record itself is not transmitted to us, but a transcript thereof, and' -the case for all general purposes still remains in the court of original jurisdiction.” -Citing People ex. rel. Hoffman v. Board of Education, supra, and quoting what is'.quoted above from that. case.

It must be said that the decisions above quoted in the. Court of Appeals leave the law in some confusion, which that court alone has the power to dispel. The scheme of the Code seems to be that when an action is appealed to the appellate court and that appeal- is perfected, all matters relating to the appeal itself and its disposition come under the control of the a23pellate court, and this is reasonable. A subordinate court can supply a defective record in the appellate court, and, as stated in the last case cited, can proceed with a motion for a new trial notwithstanding the appeal, but as to the disposition of the ap2Deal itself, whether it is to be dismissed or retained by the ajijiellate court, that is a matter exclusively for the a2>pellate court to determine.

It follows from these views that the motion to dismiss must be denied, but I think no costs of the motion should be imposed.

Motion denied, without costs.  