
    Bernard McGovern, Appellant, v. Manhattan Railway Company, Respondent.
    First Department,
    March 9, 1906.
    Stay of proceedings — Supreme Court will not stay plaintiff's proceedings because defendant appeals to Court-of Appeals from order denying new trial— such, order not appealable to Court of Appeals under State Constitution.
    A defendant w.ho has failed to appeal from a judgment for the plaintiff within the specified time and whose appeal to the Appellate Division from an order • denying a motion for á hew trial has been unsuccessful, is not entitled to an order staying the plaintiff’s proceedings on the ground that it intends to appeal to the Court of Appeals from the order denying a new trial.
    An order denying a new trial is neither a judgment nor order finally determining an action or special proceeding. Hence, the order is not appealable to the Court of Appeals by virtue of section 9, article 6 of the State Constitution; and although its appealability is solely with the Court of Appeals to determine, the Supreme Court should not stay the plaintiff’s proceedings when it clearly appears-that, the order is not appealable. ., ¡
    Appeal by the plaintiff, Bernard McGovern, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1906, granting,a stay of proceedings to enable the defendant to appeal to the Court of Appeals.
    
      Augustus Van Wyck, for the appellant.
    
      John F. McIntyre, for the respondent.
   Ingraham, J.:

This action was to recover for personal injuries, and resulted in a judgment for the plaintiff entered upon the verdict of a jury. A motion for a new trial was made at the Trial Term and denied whereupon the defendant attempted to appeal from said judgment and order denying the motion for a new trial. His notice of appeal from the judgment was served too late and that appeal was dismissed. The appeal from the order denying, the motion for a new trial was then brought on for hearing at this court, and subsequently the order appealed from was affirmed, one justice dissenting (110 App. Div. 889). Thereupon the defendant made a motion for leave to appeal to the Court of Appeals, which motion was denied. The defendant on an affidavit alleging that it was advised by counsel that the defendant had a ‘right to appeal to the Court of Appeals, without leave of this court, made a motion to the Special Term for a stay of proceedings on the judgment pending such appeal, which motion was granted; and from the order granting the same the plaintiff appeals.

We think .this order was unauthorized. The defendant having failed to appeal from the judgment, that judgment stands unreversed and in full force and effect. There is no power to allow an appeal from a judgment after the. time to appeal therefrom has expired. The appeal to this court from the order denying the motion- to set ■aside the verdict and for a new trial upon the judge’s minutes having been affirmed, no other appeal is allowed.

Section 9 of article 6 of the Constitution'provides: After the last day of December, one thousand eight hundred and ninety-five, the jurisdiction of the Court of Appeals, except where the judgment is of death, shall be limited to the review of questions of law. * * * Except where the judgment is of death, appeals may be taken, as of -right, to said court only from judgments or orders entered upon decisions of the- Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them.” - It is apparent that' an order denying- a motion for a new trial upon the judge’s minutes whs neither a judgment nor an order finally determining an action or special proceeding. It was an order in the action and determined the particular motion in that action, which it denied. The judgment finally determined the action) and from that judgment no appeal was taken. An action is finally determined by the final judgment. A special proceeding is 'finally determined by a final order; but an order entered in an action denying a motion for a. new trial is not .an order finally determining an action or special proceeding. This has "been again and again .determined by the Court of Appeals. (See Van Arsdale v. King, 155 N. Y. 325; Murphy v. Walsh, 169 id. 595 ; Croveno v. Atlantic Ave. R. R. Co., 150 id. 225 ; People v. Miller, 169 id. 339 ; Hammond v. National Life Assn., 168 id. 262.) It is quite true that we have no jurisdiction to determine whether or not a particular order is appealable to the Court of Appeals. That question is to be determined by that court when the question is presented to it. When, however, a' party to an action applies to the Supreme Court to stay proceedings upon a final judgment against it, which lias not been appealed from, upon the ground that it has taken an appeal from an order 'in'the action to the Court of Appeals,, such proceedings should not be stayed when it clearly appears, as it does in this case, that the order is not appealable. We think it clear tinder tlie decision of the Court of Appéals that the order of this court affirming the order denying the motion for a tew trial is not appealable to that court and, therefore, it, was error for- the Special Term to" stay the execution of the judgment.

It follows that the order appealed from should "be .reversed, with ten dollars costs and disbursements,, and the motion denied, with ten dollars costs.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

.Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars.costs. Order filed.  