
    Donnie Barrus, Appellant, v. David Parsons, Respondent.
    Fourth Department,
    November, 1905.
    Summary proceedings — when no appeal to Appellate Division.
    When, summary proceedings originate in a Justice’s Court and an appeal has ■ been taken to the County Court there can be no further appeal to .the Appellate Division from the determination of the County Court.
    The Code of Civil 'Procedure, construed.
    Williams, J., -dissented.
    Appeal by the plaintiff, Donnie Barrus, from a judgment of the County Court of Cayuga county in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 20th day of July, 1905, reversing a final order made in summary proceedings instituted before a justice of the peace.
    
      James Wright, for the appellant.
    
      Amasa J. Parker, for the respondent.
   Hiscock, J.:

In our opinion no appeal lies to this court from the determination of the County Court in these proceedings, they having been originally instituted in Justice’s Court, and the appeal must be dismissed.

The decision of the question whether a second appeal maybe taken from the determination of the County Court upon appeal in summary proceedings instituted before a justice, depends upon the consideration of certain provisions of the Code of Civil Procedure.

Section 2260, which is found in title 2 of chapter 1Y, relating to summary proceedings, provides that “ an appeal may be taken from a final order, made as prescribed in this title, to the same court, within the same time, and in the same manner, as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding officer, and with like effect, except as otherwise prescribed in the next two sections.” The next two sections do not affect this appeal.

It is suggested that the provision in section 2261 to the effect that an appeal cannot be taken to the Court of Appeals, from a final determination of the Appellate Division of the Supreme Court-upon such an appeal, unless the latter court by an order * * * allows it to be taken,” implies that an appeal may be taken in such a case as this to the Appellate Division. That, however, is not the natural reading. Under section 2260 an appeal might be taken to the Appellate Division from an order or judgment of the County Court when the summary proceedings originated in that court or before a judge thereof, and then the provision of section 2261, above quoted, would be applicable, and it is not at all necessary, or even natural, to assume that force can be given to this provision of section 2261 only upon the theory that an appeal may be taken to the Appellate Division in summary proceedings instituted before a justice of the peace.

Assuming then that this appeal does not come within any exception mentioned in section 2260, it is quite clear that that section does hot authorize or recognize a second appeal such as is being attempted here. It clearly provides for one appeal, which, in the case before us, would be from the determination of the justice to the County Court.

When we turn from the sections already referred to, especially relating to appeals in such a matter as this, to the provisions of the Code generally relating to appeals, we fail to find anything there which authorizes the present appeal' to this court. -

Betítion 1356 provides; “An appeal may be taken to the Appellate Division of the Supreme Court, from, an order, affecting a substantial. right, made in a special proceeding, at a Special Term or a • Trial Term, of the Supreme Court, or made by a justice thereof in a special proceeding instituted before him, pursuant to a special statutory, provision ; or instituted before another judge and transferred to, or continued before him.”

It is manifest that this section is not applicable.

Section 13-57 provides: “An appeal may also be taken to the Appellate Division of the Supreme Co'urt from an order, affecting a substantial -right, made by a court of record, - possessing - original jurisdiction, or a judge thereof, in a' special proceeding instituted in that court, or before a judge thereof,- pursuant to a' special statutory .provision; or instituted before another judge and transferred to, or continued before, the judge who made the final order. But this section does not a¡iply to a case where an appeal from the order to a court other than the Appellate Division of the Supreme Court, is expressly given by statute.” - - - '

This section limits the right of appeal to this court to orders made by a court of record or a judge thereof in proceedings “ instituted - in that court or before a judge thereof,” and it does not apply to this proceeding which was transferred to a court of record only upon appeal. •

It is, however, urged in behalf of the appellant, that section 1340 ’ of the Code will authorize this appeal upon the ground that the determination of the County Court was a “ final judgment ” and, therefore, comes within the provision of .the. section mentioned, to the effect that “ am appeal may be taken to the Appellate Division ,of the Supreme Court from a final judgment rendered by a County-Court * * * where an appeal therefrom to a court other than

■ the Supreme Court is not expressly given by statute.” . It is also suggested that if the determinátion of the County Court be regarded as an order, that -then an appeal may be takón under section- 1342 of the Code,'which provides that “ an appeal may also be taken, as_ provided by section thirteen hundred and forty, .from an order. affecting a substantial right made by the court or. a judge, in an action brought in, or taken by appeal to, a court specified in the last section.”

The provisions last quoted^ however, either by their plain terms or through the legal definition'of the words u§ed, refer to an appeal from judgments and .orders rendered and made in actions and not in special proceedings. Section 1342, in terms, limited the order from which an appeal may be taken to one rendered in an action, and the word “judgment,” used in section 1340, means a judgment in an action which is clearly distinguishable from a special proceeding, such as a summary proceeding to recover possession of lands. (Code Civ. Proc. § 3343, subd. 20.)

We do not overlook the fact that in Warner v. Henderson (25 Hun, 308) a conclusion was reached upon this matter different from that now entertained by this court. The reasoning adopted in that case, however, does not seem to us to be warranted by the statutory provisions which are applicable and the construction placed by us upon the latter is in ■ accordance with the more recent decisions. (Matter of Rafferty, 14 App. Div. 55; Matter of Soop v. Burhems, 106 id. 341; 94 N. Y. Supp. 463.) While it may seem somewhat harsh that a petitioner succeeding, in summary proceedings before a justice of the peace and then defeated upon appeal in the County Court, should not have the right to further review in this court, as in'an ordinary action, still we must recognize the power of the Legislature to accomplish that result if so desired. ' And, bearing upon the present condition of the Code in this respect, it is to be borne in mind that, concededly, under chapter 193 of the Laws of 1849, relating to summary proceedings,' the decision of the County Court on appeal from the determination of the justice of the peace was final and no further appeal was permissible.

The appeal must be dismissed, with costs.'

All concurred, except Williams, J., who dissented.

Appeal dismissed, with ten dollars costs and disbursements.  