#### Flora L. Vose, Respondent, *v.*Joseph C. Conkling, Individually and as Administrator, etc., of Ann Maria Miller, Deceased, and Others, Appellants.

First Department,

November 14, 1913.

Appeal — reversal of interlocutory judgment overruling demurrer — when appeal does not lie directly to Court of Appeals—power of courts to allow amendment to notice of appeal.

Where the Appellate Division reverses an interlocutory judgment overruling a demurrer to a complaint with leave to amend, but the plaintiff does not amend and suffers judgment dismissing the complaint, he cannot appeal to the Court of Appeals until after a further .appeal to the Appellate Division.

But if the final judgment had followed an affirmance by the Appellate Division, an appeal could have been taken directly to the Court of Appeals.

Section 1303 of the Code of Civil Procedure, which authorized the court “in or to which the appeal is taken" to permit an amendment of a notice of appeal, confers authority to allow such amendment by two courts, namely, the court of review and the court whose action is under review.

Hence, where by inadvertence and mistake of law, an appellant under the circumstances aforesaid has appealed to the Court of Appeals instead of to the Appellate Division, the Special Term which granted the final judgment from which the appeal is taken has power to amend the notice of appeal so as to make it an appeal to the Appellate Division. Such amendment of the notice of appeal may be allowed by the Special Term, although the time to appeal from the final judgment has expired, for the mistake is a mere irregularity, not jurisdictional.

McLaughlin and Scott, JJ., dissented, with opinion.

Appeal by the defendants, Joseph 0. Conkling, individually and as administrator, etc., and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 14th day of April, 1913, amending a notice of appeal herein, filed in said clerk’s office on the 17th day of January, 1913, by striking therefrom the words “to the Court of Appeals ” and inserting in place thereof the words “ to the Appellate Division of the Supreme Court in the First Department,” and permitting the withdrawal of the return to the Court of Appeals, provided said court assents thereto.

*202
      *Alfred H. Cumbers,*for the appellants.

*John Brooks Leavitt [Stuart G. Gibboney*with him on the brief], for the respondent.

Laughlin, J.:

A demurrer to the complaint interposed herein was overruled, and on appeal this court reversed the interlocutory judgment with leave to plaintiff to amend. *(Vose*v. *Conkling,*153 App. Div. 40.) The plaintiff elected not to amend, and suffered final judgment dismissing the complaint, and then filed and served a notice of appeal therefrom. Through inadvertence and a misapprehension of the law on the part of counsel for the plaintiff, that appeal was taken, in form, to the Court of Appeals. If the final judgment followed an *affirmance*by this court, an appeal direct to the Court of Appeals would have been authorized by section 1336 of the Code of Civil Procedure; but, since it followed a *reversal*by this court, the Court of Appeals was without jurisdiction to hear the appeal, and could review the judgment only after a further appeal to this court. *(Leonard*v. *Barnum,*168 N. Y. 41; *McNamara*v. *Goldan,*194 id. 315; *Will*v. *Barnwell,*19V id. 298.) On the 8th day of April, 1913, the attention of counsel for the plaintiff was drawn to the fact that a motion had been noticed by the defendants in the Court of Appeals for the dismissal of the appeal, on the ground that that court was without jurisdiction to hear it, which motion was returnable on the 14th of April, 1913; and on examining the Code of Civil Procedure he discovered the error, and on the next day, on an affidavit showing that' in preparing the notice of appeal and in taking the appeal it was his intention to appeal to the court having jurisdiction in the premises, he obtained an order to show cause why the notice of appeal should not be amended so as to show that the appeal was to the Appellate Division. That motion was granted and the order duly entered on the 14th of April, 1913. The motion to dismiss the appeal to the Court of Appeals was submitted to that court on the 2d of June and granted on the 10th of June, 1913. *(Vose*v. *Conkling,*209 N. Y. 521.)

The principal points made for the reversal of the order are that the final judgment, from which the plaintiff attempted to *203appeal, was the judgment of the Appellate Division, and that, therefore, the Special Term was without jurisdiction to amend the notice of appeal. If it were a final judgment of this court, the point that the Special Term could not amend the notice of appeal would be well taken, for authority to amend a notice of appeal is confined to “ the court, in or to which the appeal is taken.” (Code Civ. Proc. § 1303; *Bulkley*v. *Whiting Mfg. Co.,*136 App. Div. 479; *Waldo*v. *Schmidt,*139 id. 589; affd., 200 N. Y. 199.) If, however, the final judgment were the judgment of this court, there would be no occasion for appealing to this court therefrom before appealing to the Court of Appeals, and the Court of Appeals would not have dismissed the appeal. *(McNamara*v. *Goldan, supra;*Code Civ. Proc. §190, subd. 1.) The authorities relied upon in support of the contention by the appellants do not sustain it. In *Dwight*v. *Gibb*(208 N. Y. 153) the point decided was that where this court made an order modifying a judgment of the Supreme Court, and after the entry of the order in the office of the clerk of this court, a certified copy thereof, with the original papers upon which the appeal was heard, was transmitted to the county clerk, and the proper judgment in accordance therewith was entered by the county clerk, such judgment was the judgment of this court, and the appeal to the Court of Appeals should he therefrom, and not from the order of this court. In *Lamport*v. *Smedley*(157 App. Div. 442) the point decided was that it was not competent for the Special Term to stay the execution of a decree entered pursuant to the order of this court without further proceedings in the court from which the appeal was taken, on the ground that such decree was the decree of this court. The other case relied upon by the appellants is *McNamara*v. *Goldan (supra).*In that case the opinion of the Court of Appeals recognized that a final judgment entered after the reversal of an interlocutory judgment by the Appellate Division is *literally*the judgment of the Special Term, but for the purpose of determining the authority of the Court of Appeals to entertain an appeal from the subsequent affirmance thereof by the Appellate Division, it was held that, since the Special Term had no discretion, the affirmance of such final judgment by the Appellate Division was in effect a reversal of the trial court, and that an appeal to the *204Court of Appeals would lie therefrom on that theory, notwithstanding the fact that the action was . one of the class in which, under subdivision 2 of section 191 of the Code of Civil Procedure, no appeal lies to the Court of Appeals from a unanimous decision of the Appellate Division. In the case at bar this court did not direct the final judgment, and that could not be entered without an application to the Special Term (See *Leonard*v. *Barnum,*168 N. Y. 41), and although the Special Term had no discretion in the premises, for it was its duty to accept the law as declared by this court, yet the final judgment was the judgment of the Special Term, and not the judgment of this court, within the purview of section 1303 of the Code of Civil Procedure, which authorizes the court *“*in or to which the appeal is taken ” to permit an amendment of a notice of appeal. Manifestly, the Legislature intended, by the provisions of that section, to confer authority upon *two*courts to allow amendments to notices of appeal; namely, the court of review, and the court whose action is under review. The only practical effect of such an appeal to this court is to pick up, on the way to the Court of Appeals, the order of this court reversing the interlocutory judgment, for the hearing here is necessarily *pro forma.*Nevertheless, for the purposes of these Code provisions, the court *in*which the appeal is taken is the Special Term of the Supreme Court, and that court has the same jurisdiction as this court to authorize amendments.

There is no force in the contention that the notice of appeal is ineffective for any purpose, owing to the fact that it contains no notice of intention to have the interlocutory judgment reviewed. That judgment having been reviewed by this court, the plaintiff was not required to ask in the notice of appeal to this court for another review thereof.

The only remaining question which arises, but upon which the appellants present no argument, is as to whether said section 1303 of the Code of Civil Procedure authorizes such an amendment after the time to appeal from the judgment has expired. Section 1300 of the Code of Civil Procedure, which prescribes how an appeal may be taken, does not expressly require that the notice of appeal shall state the court to which the appeal is. taken; and while the practice requires that the *205court be specified, the omission is an irregularity and not jurisdictional. *(Silsbee*v. *Gillespie,*9 Abb. Pr. [N. S.] 139.) In the case at bar the appeal would lie only to the Appellate Division. It was manifestly the desire of the plaintiff, and the intention of her counsel, and is so shown by his affidavit, to appeal to the court which had jurisdiction to hear the appeal. The fact that through oversight or misapprehension with respect to the law, he designated the wrong court is, I think, a matter from the consequences of which his client may be relieved. Section 1303 of the Code of Civil Procedure provides that where a notice of appeal is served seasonably and in good faith upon the clerk or upon the adverse party, or his attorney, but the appellant “omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.” I am of opinion that this section clearly authorized the amendment.

It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., and Clarke, J., concurred; McLaughlin and Scott, JJ., dissented.

McLaughlin, J. (dissenting):

The defendants demurred to the complaint which was overruled, but on appeal the same was reversed and demurrer sustained, with leave to plaintiff to serve an amended complaint. *(Vose*v. *Conkling,*153 App. Div. 40.) Plaintiff’s attorney supposed that if he did not amend and final judgment were entered, he could appeal direct to the Court of Appeals. This was the course adopted. In doing this he did not intend to appeal to this court and there never has been any pretense or claim made that he did. Subsequently, a motion was made to dismiss the appeal to the Court of Appeals on the ground that that court did not have jurisdiction. The attorney then for the first time ascertained that in order to appeal to the Court of *206Appeals he would first have to appeal to the Appellate Division, and it was then that he made his application which resulted in the order here appealed from to amend his notice of appeal by striking out the words “to the Court of Appeals” and insertingin place thereof “ to the Appellate Division of the Supreme Court in the First Department.” The time, however, within which an appeal could have been taken to the Appellate Division had by express provision of the statute expired. (See Code Civ. Proc. § 1351.) Nevertheless, an order was made permitting the amendment, and it is sought to sustain the same by virtue of the provisions of section 1303 of the Code of Civil Procedure. This section, in substance, provides that where an appellant “ seasonably and in good faith serves the notice .of appeal,” but omits “ through mistake, inadvertence, or excusable neglect ” to perfect the appeal, then the court in or to which the appeal is taken may, in its discretion, permit the omission to be supplied.

Here an appeal was not seasonably and in good faith taken from the judgment to the Appellate Division; on the contrary, it was taken and intended to be taken solely to the Court of Appeals. An appeal was never intended to be taken to the Appellate Division until after the time provided by statute within which such an appeal might be taken had expired. Under such circumstances to permit the notice of appeal to be amended is to nullify an express provision of the statute.

I am of the opinion, therefore, that the order appealed from should be reversed and the motion denied.

Scott, J., concurred.

Order affirmed, with ten dollars costs and disbursements.