#### Julius Stern, Appellant, *v.*Barrett Chemical Company, Respondent.

First Department,

February 7, 1908;

Appeal — stay of proceedings on application for leave to appeal to Appellate Division from City Court of Ñew. York — Special Term has no jurisdiction.

After a judgment of the City Court of New York has been affirmed by the Appellate Term and judgment of affirmance entered in the City Court, the Special Term of the Supreme Court is without power to stay proceedings until the hearing and determination of, an application for leave to appeal to the Appellate Division.

The Special Term of the Supreme Court has no- jurisdiction to entertain such application for leave to appeal, or to make any order in the action pending in the City Court. Such stay must be made either by the Appellate Term, if application for leave to appeal be there made, or by a justice of the Appellate Division, if the application be made to him.

Appeal by the plaintiff, Julius Stern, from an Order of the Supreme Court, made at the New York Special'Term and entered in the office of the clerk of the county of New York on the 27th day of December, 1907.

*Arthur*Furber, for the appellant.

*William S, Beaman,*for the respondent.

Ingraham, J.:

This action was commenced in the City Court and resulted in a judgment in favor of the plaintiff. From that judgment the defendant appealed to the Appellate Term; on the 12th of Décember, 1907, the judgment of the City Court was affirmed; on the ■14th of December, 1907, the remittitur from the Appellate Term was tiled in the office of the clerk of the City Court and an order was entered making the judgment of the Appellate Term the judgment of the City Court, and on the 16th of December, 1907, judgment was entered'in the City Court affirming the judgment of the Appellate Term. Subsequently and on the 19th of December, 1907, the defendant obtained an order requiring the plaintiff to show cause at a Special Term of the Supreme Court to be held in *378the county court house on the twenty-third day of December “ why all proceedings iipon the judgment entered in the above-entitled action, in the office of the Clerk of the City Court of the City of Mew York, on the 29th day of May, 1907, and on the judgment of affirmance entered in said action in .said Clerk’s Office on the 16th day of December, 1907, should not be stayed until the hearing and determination of said application for leave to appeal to the Appellate Division, and until (in case said application be granted) the hearing and determination of said appeal by the Appellate Division,” and staying proceedings to enforce the judgment in the meantime. This motion came on to be heard at Special Term, and on the 27tli of December, 1907,-an order was entered granting the application and staying the proceedings to enforce the judgment of the City Court as asked for in the order to show,cause. From that order the plaintiff appeals, and the only question presented is whether- a Special Term of the Supreme Court had power to stay upon motion in the action a judgment regularly entered iii tlie City Court, the appeal from which judgment had been affirmed by the Appellate Term and judgment of affirmance entered in the City Court.

Appeals from judgments of the City Court are regulated by section 5 of article 6 of the Constitution, which provides that “ appeals from inferior and local courts now heard in the Court of Common Pleas for the City and County of‘•Mew York and the Superior Court of Buffalo, shall be heard in the Supreme Court in such manner and by such justice or justices as the Appellate Divisions in the respective departments which include Mew York and Buffalo shall direct, unless otherwise provided by the Legislature.” Section 3188 of the ■Code.of Civil Procedure, provides that an. appeal to the Supreme Court, may be taken from a final or interlocutory judgment rendered in the City. Court' of the City of Mew York .in a case where an appeal may be taken to the Appellate Division of the Supreme Court from a final, or interlocutory judgment rendered in the Supreme Court. ■■ Section 3194 of the Code provides that the judgment or order of the appellate court must be remitted to the court below to be enforced according to law. Title 1 of chapter 12 contains, general provisions.,relating to appeals provided for in the chapter. Section 1310 of that title provides that “where an *379appeal to the general term of any court or to the Appellate Division of the Supreme Court or to the Court of Appeals or otherwise has been heretofore or shall hereafter, be perfected^ as pre- ' scribed in this chapter, and the other acts, if any, required to be done to stay the execution'of the judgment or order appealed from, have been done, the appeal stays. all proceeding's. to enforce the judgment or order appealed from; ” that in a case specified in subdivision 2 of section .191 of the Code of Civil Procedure, a party aggrieved, upon presenting to the court proof by affidavit that he intends to apply to the Appellate Division rendering such decision for leave to appeal to the Court of Appeals and in case such Appellate Division shall refuse such leave then that such party intends to apply to a judge of the Court of Appeals to be allowed to appeal to said Court of Appeals, and proof that an undertaking given as prescribed in this chapter has been filed with the clerk with whom the judgment appealed from is entered, shall be entitled to an order staying all proceedings to enforce such judgment until, the. gran ting or refusing of such leave to appeal by such Appellate Division or a judge of the Court of Appeals. This provision contemplates an order of the court in which the action, is pending, but power to any court under this provision to stay proceedings for the enfordement of judgment is limited to a case where the undertaking on appeal sufficient to stay the execution, of the judgment had-been filed and approved. Title 3 of chapter 12 applies to appeals to the Supreme Court from an inferior court. Section 1343.of that title provides : “ Security is not required to.perfect it (an appeal); but it does not stay the execution of the order from which it is taken. The appellate court, or a judge thereof, may direct such a stay, upon such terms, as to security or otherwise, as justice requires.” . Section 1344, of the Code provides : “An appeal taken as prescribed in this.title, must be heard by the Appellate Division of. the Supreme Court,.except that appeals from the judgment of any Municipal Court in either of the boroughs of Manhattan or The Bronx in the city of New York, or from a judgment or order of the City Court ,in the city of New York, may be. heard by the Appellate Division of the Supreme Court, or by such justice or justices of the Supreme Court.as may be designated for that purpose by the justices of the Appellate Division sitting in the first judicial department. In case an appeal-is heard by a .justice *380or' justices of the Supreme Court as hereinbefore provided, the justice or justices by whom such' appeal was determined, or a justice tif the Appellate Division in the first judicial department', may allow an.appeal to be taken, to such Appellate Division from such-determination.” And title 4 of chapter 12 applies to appeals t'o-the Appellate Division of the Supreme Court from.a judgment or order of the Supreme Court. Under the authority contained in these provisions of the Constitution and the Code of Civil Procedure, the Appellate Division of the Supreme Court in the first judicial department has directed that there should be a term of the Supreme Court for the hearing of appeals from the City Court and the Municipal Court of the City of New York in the boroughs' of Manhattan and The Bronx, to be held by three justices of the' Supreme Court assigned thereto, which shall be known as the Appellate Term. (See Buies for the Hearing of Appeals from the City Court of the City of New-York and from-the Municipal Court in the Boroughs of Manhattan-and The Bronx.)

From an examination of these provisions, it would appear that the only jurisdiction that the Supreme Court has in relation to appeals from’ judgments of the- City Court is that the justices designated for that purpose by the Appellate Division shall hear and' decide the appeals. Under-section 1344 of the Code of Civil Procedure an appeal from the City Court may be heard by the Appellate Division of the Supreme Court, or by such justice dr justices of the Supreme Court as may be designated for that purpose by the justices of the Appellate Division sitting in the first judicial department. And the only justice who can allow an appeal to the Appellate Division from' a determination made by Such justice or justices is the justice or justices by whom the appeal was determined or by a justice of the Appellate Division in the. first judicial department. When such an appeal has been heard and decided and the proceed^ ings remitted to the City Court, the Supreme Court has no further jurisdiction in the action, except that the justice or justices who determined the appeal, or a justice of the Appellate Division in the first, judicial department, may allow an appeal to the Appellate Division. No justice of the Supreme Court and no Special Term of the Supreme Court, except a -justice who is authorized to allow an- appeal, has any jurisdiction to make, any order in the action *381pending in the City Court. I think a justice of the. Appellate Term, who has power to allow an appeal could- stay proceedings-pending an application' to the Appellate Term of which he was a member to allow an appeal, or a justice of the Appellate Division could stay such, proceedings pending an application to a justice of the Appellate Division for such permission, as such a stay would be an incident to the allowing of the appeal and essential to make the application effective. But I-can find no provision that confers upon the Special Term of the Supreme Court power to make such an order or to interfere with the orderly enforcement of judgments and orders of the City Court. It is quite- unnecessary to burden the ■ Special Term with motions of' this character. Where application for leave to appeal has been made, if made to the Appellate Term justices,, those justices have power to stay the enforcement of the judgment pending the application. If the application is to be made before a justice of the Appellate Division a justice of the Appellate. Division before whom the application is -pending may stay the enforcement of the judgment until the application can be . disposed of. The Special Term of the Supreme Court has no jurisdiction either to entertain the application for leave to appeal, or to make any order in the action pending in the City Court; and the orderly transaction of business requires that such applications not being at all necessary for the protection of parties should not be encouraged. *■ '*

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

Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.

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