
    Wahle-Phillips Company, Appellant, v. Mary A. Fitzgerald, Respondent, Impleaded with Broadway and Forty-third Street Building Company and Others, Defendants.
    First Department,
    March 24, 1916.
    Appeal to Court of Appeals—practice—when Appellate Division should not certify questions of law— Code of Civil Procedure construed— appeal as matter of right—form of certification—no appeal from order of affirmance of Appellate Division.
    As the plaintiff in an action in the Supreme Court to foreclose a mechanic’s lien has an absolute right to appeal from the Appellate Division to the Court of Appeals by virtue of subdivision 1 of section 190 of the Code of Civil Procedure, it is improper for the Appellate Division to certify questions of law to be reviewed by the Court of Appeals. Where the appeal is as of right, no such questions are necessary or proper. It is only where an appeal is allowed under subdivision 2 of section 190 that such questions should be certified.
    
      Where the ease is within one of the three classes described in subdivision 3 of section 191 of the Code of Civil Procedure, no such questions would be proper, for the mere certification that in the opinion of the court a question of law is involved which ought to be reviewed by the Court of Appeals is sufficient.
    No appeal can be taken to the Court of Appeals from an order of the Appellate Division affirming a final judgment of the Special Term. The appeal must be taken from the judgment entered upon the order of affirmance.
    Motion to resettle an order of affirmance of a judgment of the Supreme Court rendered upon the decision of the court at Special Term and to certify certain questions herein to the Court of Appeals.
    
      John A. Dutton, for the motion.
    
      Winthrop E. Dwight, opposed.
   Clarke, P. J.:

An appeal was taken to this court from so much of a judgment of the Special Term of the Supreme Court entered upon a decision in an action to foreclose a mechanic’s lien as adjudged that no lien had been acquired by the plaintiff for certain of the labor performed and materials furnished. This court unanimously affirmed the judgment appealed from. (172 App. Div. 907.) In its order of affirmance it provided as follows: With leave to the appellant to appeal from this order to the Court of Appeals, the Court certifying that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. ” A motion was thereafter made for an order resettling said order of affirmance by adding thereto and certifying three questions of law to be reviewed by the Court of Appeals.

The action being in the Supreme Court, and not one of those specified in subdivision 2 of section 191 of the Code of Civil Procedure prescribing the classes of cases in which no appeal can he taken to the Court of Appeals from a unanimous judgment of affirmance unless such Appellate Division shall certify that in its opinion a question of law is involved which ought to he reviewed by the Court of Appeals, or unless, in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals,” the insertion of the leave to appeal in our order of affirmance was improper. The plaintiff had the right to appeal under subdivision 1 of section 190 of the Code of Civil Procedure, providing that appeals may be taken as of right to said court from judgments or orders finally determining actions or special proceedings.

In no event would the certification of questions in this case be proper. If the appeal is as of right no such questions are necessary or proper. “ It is only when an appeal is allowed under subdivision 2 of section 190 that questions should be certified to this court. In this case the plaintiff could appeal from the judgment of the Appellate Division as a matter of right and without leave from that court.” (Seward v. Davis, 198 N. Y. 415.) If the case were within one of the classes prescribed in subdivision 2 of section 191 of the Code of Civil Procedure no such questions would be proper, the mere certification that in the opinion of the court a question of law is involved which ought to be reviewed by the Court of Appeals being sufficient. (Young v. Fox, 155 N. Y. 615; Commercial Bank v. Sherwood, 162 id. 316; Kurz v. Doerr, 180 id. 88; Klein v. East River Electric Light Co., 182 id. 27.)

Nor could an appeal be taken to the Court of Appeals from the order of this court affirming the final judgment of the Special Term. It must be taken from the judgment entered upon the order of affirmance. (Kilmer v. Bradley, 80 N. Y. 630; Derleth v. De Graff, 104 id. 661; Croveno v. Atlantic Avenue R. R. Co., 150 id. 225.)

The order should, therefore, be resettled by striking out the final provision quoted supra, without costs.

McLaughlin, Dowling, Smith and Davis, JJ., concurred.

Motion granted, without costs.  