
    James Walsh, Appellant, against Charles Schulz, Impleaded with Edward Fitzpatrick et al., Respondent.
    (Decided March 15th, 1883, and May 22d, 1884.)
    Pending an appeal to the General Term of the Marine Court of the city of Hew York from an order of that court which opened a judgment entered upon failure to answer and allowed the defendant to answer the complaint, upon terms, the act of July 1st, 1882 (L. 1882, c. 399), was passed and went into effect, amending section 3191 of the Code of Civil Procedure by adding a provision for an appeal to this ’ court from an actual determination of the General Term of the Marine Court, “ where an order has been made which grants, refuses, continues, or modifies a provisional remedy, or where it involves some part of the merits, or where it affects a substantial right, or where, in effect, it determines the action and prevents a judgment from which an appeal might be taken;” but also providing that no amendment made by the act should “ invalidate or impair the effect of any proceeding heretofore taken.” The order-appealed from was subsequently affirmed by the General Term of the Marine Court. Held, that an appeal to this court from that determina- . tion must be dismissed.
    
      Appeal from an order of the General.Term of the Marine Court of the city of New York, affirming an order of that court at Special Term opening a judgment entered against the defendant b\r default, and allowing him to answer upon terms.
    The order of the Special Term was entered May 15th, 1882, and the appeal to the General Term was taken May 22d, 1882. An appeal to this court was not permitted by the law in force before the statute passed July 1st, 1882 (L. 1882, c. 399, p. 571), which statute also declared “ nor shall any amendment made by this act invalidate or impair the effect of any proceeding heretofore taken ” (p. 573). An order of the General Term of the Marine Court affirming the order appealed from was entered November 8th, 1882. From this order plaintiff appealed to this court.
    
      James Flynn, for appellant.
    
      Charles Wehle, for respondent.
   Charles P. Daly, Chief Justice.

This is an appeal from an order in the Marine Court, opening a judgment, and allowing the defendant to answer the complaint, upon the payment of costs ; which was made at the Special Term, and affirmed by the General Term of that court.

The order of the Special Term opening the judgment was made on the 15th of May, 1882; and the amendatory act (L. 1882, pp. 566, 571), which allows an appeal to this court from an actual determination of the General Term of the Marine Court, where an order has been made in that court, which grants, refuses, continues or modifies a provisional remedy, or where it involves some part of the merits, or where it affects a substantial right, or where, in effect, it determines the action and prevents a judgment from which an appeal might be taken, was passed on the first of July, 1882, after the order of the Special Term was made opening the judgment.

The appeal from an order in such cases was allowed, by an amendment of section 3191 of the code; and the second and last section of this amendatory act declared that no amendment made by it should invalidate or impair the effect of any proceeding theretofore taken. We have no power, therefore, to reverse the order of the General Term, affirming the order of the Special Term, as the effect of it would be to invalidate a proceeding taken before the amendatory act was passed.

The opening of the judgment and allowing the defendant to come in and defend upon terms, must, I think, within the meaning of this provision, be regarded as a proceeding; and the reversal of the order would be to invalidate it and restore the judgment.

The appeal, in my opinion, should therefore be dismissed.

Van Biutnt and Beach, JJ., concurred.

Subsequently, a motion was made by appellant for a re-argument, and was granted on the authority of Townsend v. Hendricks (40 How. Pr. 143). The re-argument was heard at the General Term, November, 1883, and the decision thereon was rendered May 22d, 1884.

H. H. Benn and James Flynn, for appellant.—Allowing an appeal from the order does not invalidate it, nor does it impair the effect of the order. If on appeal the court should reverse it, it would be because it is void or erroneous, but it is not the amended act that makes it void or erroneous, but being void or erroneous the court on appeal so declares it. It is the court that reverses or affirms it, and not the amended act.

The right of appeal to the General Term of the Marine Court always existed, and it was the duty of the General Term to reverse the order of the Special Term, if erroneous. Before the General Term passed upon the question, the Code was amended allowing an appeal to this court, thus bringing the question within the decision of the Court of Appeals in the case of Townsend v. Hendricks (40 How. Pr. 143). In that ease, the order of the Special Term was made April 11th, the Code was amended on May 6th, 1870, allowing appeals to the Court of Appeals from such orders,- and on June 30th, the General Term affirmed the order of the Special Term (p. 145). The Court of Appeals refused to dismiss the appeal.

Charles Wehle, for respondent.—The order is not appeal-able to this court. As the order appealed from, made May 15th, 1882, grants leave to the defendant to interpose an answer which, under the law as.it stood before the amendment of July 1st, 1882, would not be subject to a reversal by this court, it is evident that this appeal might impair the effect of a proceeding already taken, and hence it is excluded by the terms of the amendment, even assuming that it was not a discretionary order.

In the case of Townsend v. Hendricks (40 How. Pr. 143), the question litigated was whether an amendment of section 11 of the Code passed in 1870 affected the right of appeal to the Court of Appeals from a certain interlocutory order, and the court decided it in the affirmative (pp. 159, 161). But it will be observed that that amendment contained no exception as to any order already made, while in the case at bar it is expressly provided that the amendment shall not “invalidate or impair the effect ” of the order.

Aside from all other considerations, it is evident that the order, in opening the default of the defendant Schulz and. allowing him to interpose an answer, was within the sound discretion of the court at special term; and as the terms imposed upon the said defendant are reasonable, and those usually granted under similar circumstances, the order ought not to be disturbed on appeal; the memorandum of decision made by the learned judge who heard the argument, while intimating that the motion might be granted as a matter of strict right, based it upon such discretion, and the General Term affirmed it upon the same ground.

J. F. Daly, J.

[After stating the facts substantially as above.]—I think the former disposition of this appeal by our General Term was proper. It was held that the order of the Special Term of the Marine Court opening the judgment against Schulz and allowing him to come in and defend was a proceeding in the action, and that by express enactment its effect could not be invalidated or impaired by the statute subsequently passed permitting appeals to this court from an order of the General Term of the Marine Court affirming or reversing such an order. The limitation of the effect of the new provision is comprehensive, more so than if it were a mere enactment that the appeals thus instituted should only apply to orders to be made thereafter; for as. the appeals thus allowed were from general term orders, it might be said that any subsequent general term order was appealable, whether the special term order passed upon by the general term ante-dated the statute or not. But the limitation that no proceeding theretofore taken should be invalidated or its effect impaired, was a clear statement that all rights acquired by virtue of orders made before the statute should be retained. This could not be effected if such orders were subjected to the peril of reversal, and the rights obtained under them to the chance of being lost through such reversal, by reason of the new appellate jurisdiction created by the act.

The case of Townsend v. Hendricks (40 How. Pr. 143) does not control. While the amendment to the Code allowing the appeal to the Court of Appeals in that case was passed between the special term and the general term decisions, the statute did not reserve any rights acquired before the amendment, nor save any prior proceedings from its possible effects. In this case we could not give effect to the saving clause of the statute now under consideration if we entertained an' appeal which could possibly result in setting aside a proceeding had prior to the statute by which any right or privilege had been acquired.

The appeal should be dismissed, with ten dollars costs and disbursements.

Vast Hoesen, J.

The language of section 8191 differs in some particulars from that of section 190, but the differences do not affect the matter now under consideration. It is well settled that with respect to the Marine Court, the Court of Common Pleas occupies the same position that the Court of Appeals holds with respect to the Supreme Court and the Superior City Courts. The rules that govern the Court of Appeals in passing upon appeals from the Supreme and the Superior City Courts are applicable to appeals taken from the Marine Court to the Court of Common Pleas. This has been universally understood since the decision in McEteere v. Little (8 Daly 167) and Schwarz v. Oppold (74 N. Y. 307). If, therefore, we ascertain the course that would be taken by the Court of Appeals, if this appeal were before it, we shall have a guide to the decision of the question before us.

The case of Lawrence v. Farley (73 N. Y. 187) is conclusive upon the point that the Court of Appeals will not review the discretion of a court of original jurisdiction. In the case cited, a judgment by default was entered against the defendant in 1862. In 1874 a judgment for a deficiency was docketed against the defendant, and more than two years afterwards the defendant applied for the opening of the judgment, and gave excuses for suffering the default that were satisfactory to the Supreme Court, which opened the judgment, and allowed the defendant to interpose an answer. From this order an appeal was taken to the Court of Appeals, which dismissed the appeal on the ground that the order was discretionary, and that the Court of Appeals, being a tribunal created for the examination of questions of law (save in a few cases specially provided for), ought to refrain from reviewing matters of discretion which are likely to involve intricate controversies respecting matters of fact. To the same effect are Howell v. Mills (53 N. Y. 331) and Ailing v. Fahy (70 N. Y. 571).

As I have already said, the Court of Common Pleas is, with respect to the Marine Court, in the position of an appellate tribunal charged (save a few cases specially provided for) with the sole duty of reviewing questions of law; and the same reason that prevents the Court of Appeals from reviewing matters resting in the discretion of other courts, applies with full force to appeals brought into this court from discretionary orders made by the Marine Court.

There is nothing in the amendment to section 3191 that introduces a new rule, for nothing in it requires us to review matters of discretion that the Marine Court has considered.

Again, the order before us was made after judgment, and section 3191 does not authorize an appeal to this court from such an order (Lawrence v. Farley, 73 N. Y. 189; Bamberg v. Stern, 76 N. Y. 555).

This last observation is obiter, as.is the further one, that the case of Townsend v. Hendricks (40 How. Pr. 143) would, in my opinion, warrant us in sustaining the appealability of the order, if it were not a discretionary order. I do not discuss the matter, though I have examined it, and formed a decided conclusion upon it.

The appeal should be dismissed, with costs.

Van Brunt, J., concurred.

Appeal dismissed, with costs.  