#### Margaret Kleiner, by her Guardian, Plaintiff, *v.*The Fidelity and Deposit Company of Maryland, Defendant.

(Supreme Court, New York Trial Term,

November, 1900.)

Jurisdiction — Where a judge of the Court of Appeals allows an appeal from an unanimous affirmance by the Appellate Division of a judgment for the plaintiff for personal injury, in order to review a single question of law, the Court of Appeals may reverse for any error of law — Undertaking on appeal to the Appellate Division not actionable after such reversal.

In an action upon an undertaking, it appeared that the defendant was surety upon it for a street railroad corporation on its appeal to the Appellate Division from a judgment in favor of the plaintiff in an action to recover damages for personal injury, that the judgment was there unanimously affirmed, and that a certificate to *go*to the Court of Appeals was refused, that subsequently a judge of the latter court allowed an appeal in order to review one specific question, and that when the case was heard by the Court of Appeals it reversed the judgment for an error of law respecting questions other than the one specified in the judge’s order. The plaintiff claimed to recover as upon the judgment of the Appellate Division and insisted that the reversal by the Court of Appeals was unauthorized.

Held, that the position was untenable.

That the allowance by a judge of the Court of Appeals of an appeal to that court brought up for review all questions of law contained in the entire record, also gave that court exclusive power to-construe its own jurisdiction over the appeal, and that thereafter a trial court could take no action which might by any possibility injure the appellant.

Action on undertaMng given on appeal to the Appellate Division in an action wherein the plaintiff had recovered judgment against the Third Avenue Railroad Company.

I..Newton Williams, for plaintiff.

Hoadly, Lauterbach & Johnson, for defendant.

*189McAdam, J.

It might be deemed presumptuous for a court, at Trial Term, to inquire into whether the Court of Appeals possessed the jurisdiction it assumed in a given case were it not for the fact that “ It is no new feature in the law that inferior magistrates may, when thereunto called, sit in judgment upon the jurisdiction of the highest courts, when their process or judgments come collaterally before them.” People ex rel. Tweed v. Liscomb, 60 N. Y. 568. In this instance it becomes necessary to pass upon the validity of a judgment rendered by the Court of Appeals which is attacked for want of jurisdiction. When there is no jurisdiction the proceeding is as nothing. Perkin v. Proctor, 2 Wils. 382, 384, citing Marshalsea case, 10 Coke, 76a, 76b. Judgments without jurisdiction are not voidable, but void (Black Judg., §§ 171, 218; Clarion, etc., R. Co. v. Hamilton, 127 Penn. St. 3), and, being nullities, may be attacked directly or collaterally. Risley v. Phenix Bank, 83 N. Y. 318; Everett v. Everett, 22 App. Div. 473. These principles are elementary, for manifestly a void thing is no thing. It appears that on April 12, 1898, the plaintiff recovered judgment for personal injuries, caused by negligence, against the Third Avenue Railroad, for $2,792.21, damages and costs. The defendant appealed from said judgment to the Appellate Division, and on the appeal the defendant executed an undertaking in which it agreed that if said judgment was affirmed the defendant would pay the amount thereof with all costs. On January 30, 1899, the Appellate Division unanimously affirmed said judgment, with $130.85 costs. 36 App. Div. 191. On February seventeenth following, an application for reargument or for a certificate permitting the railroad company to appeal to the Court of Appeals was made to the Appellate Division and denied. In the following month Chief Judge Parker of the Court of Appeals signed an order allowing an appeal to that court- for the purpose, as the order recited, of reviewing one specific question as to which it was claimed the trial judge had committed error. The cause was heard in the Court of Appeals, and the judgment was reversed and a new trial ordered for an error of law, respecting questions other than the one specified in said order. 162 N. Y. 193. The plaintiff contends that such a reversal and direction were unauthorized; hence the judgment was null and void, both as to the parties and their sureties. Acting upon this theory, the plaintiff brought the pres*190ent action against the defendant, as surety on the appeal to the Appellate Division, to compel it to pay the amount of the judgment as approved by that court, notwithstanding the action of the Court of Appeals thereafter. Appellate jurisdiction is conferred only by the statute, which limits the right of review, and any departure therefrom renders the action of the appellate court abortive. Wilmore v. Flack, 96 N. Y. 512. Even consent will not confer jurisdiction in such case where the statute does not. McMahon v. Rauhr, 47 N. Y. 67; Matter of Tuthill, 36 App. Div. 492. The Code (§ 191, subd. 2) provides that “ FTo appeal shall be taken to said court (of appeals) from a judgment of affirmance hereafter rendered * * * when the decision of the appellate division of the supreme court is unanimous, unless such appellate division shall certify that in its opinion a question of law is involved which ought to be reviewed by the court of appeals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the court of appeals.” When Chief Judge Parker signed the order, no matter how worded, allowing the appeal, the entire record, so1 far as questions of law were concerned, went to that court unrestricted for review (Young v. Fox, 155 N. Y. 615, 619; Commercial Bank v. Sherwood, 162 id. 310; O’Rourke v. Feist, 42 App. Div. 136), and it was upon such questions that the judgment was reversed. The jurisdiction of the Court of Appeals was plenary and its exercise within prescribed limits. In the Encyclopedia of Pleading and Practice (vol. 2, p. 24) it is said: *“*The appellate court has exclusive power to judicially construe the extent of its own jurisdiction. The inferior court has, therefore, no power to decide whether an appeal lies in a particular case or whether the requirements of appellate procedure have been properly complied with.” So, after an appeal has been taken and jurisdiction vested in an appellate court, no action can be taken by the trial court which might by any possibility injure the appellant. Hall v. Jack, 32 Md. 253; Ohio L. Ins. *&*T. Co. v. Winn, 4 Md. Ch. 254. It is not necessary to search for instances which might prove exceptions to the rule stated, for, upon the entire case, there must he judgment for the defendant.

Judgment for defendant.