
    SUPERVISORS OF RICHMOND against VAN CLIEF.
    
      Supreme Court; Second Department, Second District; General Term;
    
    September, 1874.
    Appeal to «Court op Appeals.—Leave to Appeal under Ch. 332, Laws op 1874.
    Under chapter 822, of the Laws of 1374,—amending Laws of 1848, ch. 379 ; Code, § 11, and providing that “no appeal shall be hereafter taken to the court of appeals from any judgment or order granting or refusing a new trial where the amount of the judgment or subject-matter in controversy in the action or proceeding does not exceed five hundred dollars, exclusive of the costs therein, unless the general term of the court, from whose decision or determination such appeal shall betaken, shall, by an order to be entered in the minutes, state that there is involved some question of law which ought to be reviewed in the court of appeals, ” —when the-amount involved is less than five hundred dollars, the defeated parties may apply at any general term in the department, at any time within two years from .notice of entry of judgment, for an order stating that the case involves questions of law which ought to be reviewed in the court of appeals.
    It is not the province of the general term to certify such fact, unless the defeated party applies to the court so to do.
    A motion to the general term, for the order, by the party desiring it, is the proper practice.
    The supervisors of Richmond county recovered at the Richmond circuit, in April, 1873, in a suit by them against John H. Van Clief, Sr., a verdict for four hundred and sixty-three dollars and ninety-nine cents, subject to the opinion of the court at general term, and the defendant’s exceptions were ordered to be heard at general term in the first instance.
    The exceptions came on for argument at general term, in February, 1874, and at the general term held in May, 1874, the cause was decided, and the court ordered judgment for the plaintiff upon the verdict, and denied the defendant’s motion for a new trial.
    In the mean time the amendment to section 11 of the Code (chap. 322 of the Laws of 1874), was passed, which provides as follows: “No appeal shall hereafter be taken to the court of appeals from any judgment or order granting or refusing a new trial when the amount of the judgment, or subject-matter of the controversy in the action or proceeding, does not exceed five hundred dollars exclusive of the costs therein, unless the general term of the court, from whose decision or determination such appeal shall be taken, shall by an order, to be entered in its minutes, state that there is involved some question of law which ought to be reviewed in the court of appeals.”
    
      The defendant desiring to appeal from the judgment, obtained a stay of proceedings until he could move at the next general term for the required order, and at the general term, in September, 1874, upon the papers and proceedings in the case, made the motion.
    It was conceded that the case presented was a proper one to be reviewed in the court of appeals, provided the general term had power to make the order.
    
      Mr. Tompkins Westernelt, for the plaintiff,.
    argued that the court had no power to make the order at this time; that the words “the general term of the court” in the statute, meant that the order must be made at the. same general term at which the case was decided..
    
      Mr. 8. F. Rawson, for the defendant,
    argued that, the words referred to simply meant the general term of the same district; and that the motion for the order might be made and the order granted, at any general term which might be held in the department at any time within the two years allowed by the Code, in which to appeal from the judgment, that if this were not so, each party would be compelled to ask the court on the argument, to allow them if defeated, to appeal to the court of appeals, which would be an absurdity; or which would be equally absurd, the. general term would be obliged to certify in each case, whether the defeated party desired it or not; that there was or was not some question of law involved, &c.
    
      
       The section contains also this clause: “In actions not founded upon contract, where the judgment appealed from is for the defendant, the amount claimed in the complaint shall be deemed the amount of the subject-matter of the controversy. Nothing in this provision is to apply to actions or proceedings affecting the titíe to real estate or an interest therein.”
      It will be noticed that the act is silent in respect to the appeal of some causes which are not founded upon a pecuniary claim, and some of those in which the pecuniary value involved can not be estimated. In cases of the former nature,—e. g., involving a claim to the guardianship of infants, based not on the pecuniary advantage to accrue therefrom but upon other considerations—it has been held, under the United States acts, which give an appeal where the matter in dispute exceeds a given sum, that an appeal does not lie (De Krafft v. Barney, 2 Black, 704 ; Barry v. Mercein, 5 How. U. S., 103). An appeal in a controversy, as to the appointment of a guardian sought on the ground of the amount involved, has also been dismissed on the ground that the office had no pecuniary value (Ritchie v. Mauro, 2 Pet., 243). In a case, however, where the appellant held as a slave, claimed his personal liberty, the court, while holding that the matter in dispute was not susceptible of a pecuniary valuation, sustained jurisdiction of the appeal, and this under a statute, which provided that no appeal should lie unless the amount in controversy was of a certain value (Lee v. Lee, 8 Pet., 44).
    
   The Court

unanimously held that the* application was properly made at this term, and that the court had power to make the requisite older; and the following entry was ordered to be made oh the minutes, under the title of the cause.

“It is ordered and stated that there is involved ira this action some question of law which ought to be reviewed in the court of appeals, and that this order be entered in the minutes of this general term.” 
      
       Present, Barnard, P. J., Talcott and Tapper. JJ.
     