
    Gardiner Van Nostrand and Others, Individually and as Executors and Trustees under the Last Will and Testament of John J. Van Nostrand, Deceased, Respondents, v. Frances Stanton Van Nostrand and Others, Respondents. Louisa B. Van Nostrand, Individually and as Executrix, etc., of John J. Van Nostrand, Deceased, Appellant.
    Second Department,
    April 24, 1908.
    Appeal to Court of Appeals — dismissal of appeal from order — power of county clerk.
    An order dismissing an appeal from an order amending a judgment is not appealable, to the Court of Appeals.
    Appeals to said court may only be taken, as of right, from judgments or orders finally determining actions or special proceedings, excepting orders granting new trials on exceptions. It is not enough that the action or special proceeding he ended by the judgment oi order, it must he determined on the merits. On an appeal from an order only an order, not a judgment, can he entered thereon.
    A county clerk has no authority to enter any judgment or order on an appeal to the Appellate Division which was not made or directed by that court.
    Hooker, J., dissented, with opinion.
    Appeai by Louisa B. Van Nostrand, individually and as execu trix, etc., from an order of the Supreme Court, made at the Kings County Special Term aud entered in the office of the clerk of the county of Kings on the 28tli day of September, 1907, in so far as such order denied the appellant’s motion to vacate a judgment entered herein on the 31st day of July, 1907, upon an order of the Appellate Division dismissing an appeal from an order.
    
      Alfred Jaretzki, for the appellant.
    
      Henry Hirschberg, for the respondents Anabel G. Van Nostrand and Frances S. Van Nostrand and for Anna Bell Van Nostrand, administratrix, etc., of Gardmer Van Nostrand, deceased.
   Gaynor, J.:

The notice of appeal herein was from an order made by the Special Term of the Supreme Court amending the judgment herein, and entered June 8th, 1889. We dismissed the appeal for the reason that the time to appeal had been limited to 30 days by service of notice of entry of the order in 1889, and also for the reason that there had been no substitution of the heir, devisee or executor (as the case might be) in the case of deceased parties who would be respondents if alive when the notice of appeal was so filed in 1907. A history of the case is given in our opinion (121 App. Div. 262).

The appellant has caused the county clerk to enter on our order of dismissal what is called a judgment of dismissal, and has taken an appeal to the Court of Appeals from such judgment of the county clerk. A motion to vacate such judgment was denied by an order of the Special Term of the Supreme Court, and this appeal is from that order.

Our order dismissing the appeal from the said order amending the judgment, and entered in 1889, is not appealable to the Court of Appeals. Appeals to the Court of Appeals may be taken as of right only from “ judgments or orders finally determining actions or special proceedings ” (excepting orders granting new trials on exceptions), which means, as has been authoritatively determined, (1) final judgments determining actions, and (2) final orders determining special proceedings, on the merits. It is not enough that the action or special proceeding be ended by the judgment or order; it must be determined on the merits (Van Arsdale v. King, 155 N. Y. 325). Eow neither our order nor the county clerk’s'judgment, if it have force, determines this action in the sense above stated. The merits of the appeal from the order of 1889 have not been determined by us. The question is one of strict right, i. e., of whether the case be one in which the right of appeal to the Court of Appeals be given.

It is said that the later case of Stevens v. Central National Bank (162 N. Y. 253) is a departure from the rule. If it be it does not help the present case. There an appeal from a final judgment was dismissed by the order of the Appellate Division, and the appellant was allowed to enter a judgment on such order and appeal from it to the Court of Appeals. How in the case of an appeal to this court from a judgment, a judgment of affirmance or of reversal, as • the case may be, has to be entered to be appealed from to the Court of Appeals, where such appeal may be taken, as we have seen. But in' the case of an appeal to this court from an order (which is this case), only an order can be made thereon. There is no such thing as entering a judgment’ on our decision except the appeal to us be from a judgment. Only an order may be entered on our decision in the case of an appeal to us from an order. Hor has a county clerk authority to enter any judgment or order which we have not made or directed.

The order should be reversed and the motion granted.

Woodward, Jenks and Rich, JJ., concurred; Hooker, J., read for affirmance.

Hooker, J. (dissenting):

The judgment in this case was entered upon the findings of the court in the year 1889; about a month after the judgment was entered a motion was made to amend the findings and the judgment in an essential particular. The motion was granted. In the year 1907 one of the defendants appealed from this order. We dismissed the appeal, first on the ground that no oz-der of substitution had been made of the heir, devisee or executor of one of the respondents, deceased, since the entry of the order and before the service of the notice of appeal. Another ground of our dismissal was that subsequent to the argument and submission of the appeal it was shown by affidavit on a zuotion to dismiss the appeal that a notice of entry had been served in the year 1889, with a copy of the order, and hence the appellant’s time in which to appeal had been limited to thirty days.

On our order of dismissal the respondent ón this appeal entered a jtidgmenb of dismissal and has appealed therefrom to the Court of Appeals. This appeal is from an order denying a motion to vacate that judgment, which motion was made at the Special Term of the Supreme Court.- The respondents upon this appeal rely upon the authority of Stevens v Central National Bank (362 N. Y. 253) as their authority for the practice they have adopted in entering a judgment of dismissal upon our order of dismissal and then taking their appeal to the Court of Appeals from that judgment.

I do not concur with Hr. Justice Gaynor. In the first place I deem it wholly unnecessary and somewhat out of place for us to undertake to determine whether or not an appeal lies to the Court of Appeals from our order of dismissal of the appeal from the order amending the judgment. It appears that such an appeal is now in the Court of Appeals and in the natural order of things it is for the Court of Appeals to determine for itself' whether the appeal lies there or not. What we may say cannot possibly affect the ultimate decision of that question. In fact we cannot decide it even temporarily.

In the second place the practice in this particular seems to be not wholly without doubt. I agree that ordinarily there is no such thing as entering judgment in the county clerk’s office on our decision except in cases where the appeal heard by us was from a judgment; that is, an order only may be entered upon our decision when the appeal heard by us is from an order. But the respondents in this appeal have adopted the other practice, relying upon the Stevens case; that case may or may not be sufficient warrant for his practice. The fact remains that they have entered judgment of dismissal and have appealed therefrom to the Court of Appeals. The very question presented by this appeal is, therefore, now in the Court of Appeals and will in due course, it is presumed, be argued before that court and decided by it. It seems to me, therefore, that unless there is some controlling reason why we must decide this appeal now, the delicate thing for ns to do is to defer determining this appeal until the Court of Appeals has passed on the question; in other words, we ought not to anticipate a decision of the Court of Appeals upon a question which affects that court, namely, its jurisdiction to hear an appeal in a given case. I am not unmindful that it ordinarily becomes our duty. to decide appeals from orders which come regularly into this court; and a case might arise where we would have to pass upon the question of the appealability of an order to the Court of Appeals. It is not necessary, however, to do this in this case. The appeal now pending in the Court of Appeals is entirely independent of the appeal now before us, and our decision of this appeal can in no way affect the appeal to the Court of Appeals from the judgment of dismissal. We should not, and of course we could not even' if we desired, foreclose any party of an appeal to the Court of Appeals, where he might take his appeal as a matter of right. I think the orderly thing for us to do is to suspend our judgment until the appeal from the judgment of dismissal is determined in the Court of Appeals, and I, therefore, advise that course. » a

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.  