#### George Bruce Webster, Plaintiff-Appellant, *v.*Clark H. Abbott and Bartholomew B. Coyne, Defendants-Respondents.

(Supreme Court, Appellate Term,

November, 1910.)

Appeal — Appealable decisions — From the Appellate Term — Allowance of appeals.

•Stay of proceedings — Supersedeas or stay by proceeding's for review — Allowance or order for stay — Who may order.

An appeal from the Appellate Term to tlie Appellate Division of the Supreme Court, if allowed, is not from the judgment of the trial court but from the determination of the Appellate Term.

Whether there shall be an appeal to the Appellate Division rests •olely with the justices who determined the appeal to the Ap*310pellate Term, or, on their refusal to allow the same, with tlie justice of tlie Appellate Division to whom application may be made and, pending such application, only the said justices of the Appellate Term may grant a stay of proceedings.

An order of tlie City Court of the city of New York, staying proceedings on a judgment rendered therein after its affirmance by the Appellate Term and of all proceedings in an action upon the undertaking given on the appeal until the hearing and determination by tlie Appellate Term of an application for leave to appeal to tlie Appellate Division and, in the event of the denial of such leave, then until a refusal by a justice of the Appellate Division to permit tlie appeal, and, if such application is granted until the determination of the appeal to the Appellate Division, is unauthorized.

Tins is an appeal from an order of the City Court of the city of New York staying the proceedings.upon the judgment entered in this action .and on the judgment of affirmance thereof and also all proceedings in an action commenced in that court on the undertaking given on appeal, until the hearing and determination by the Appellate Term of an application to he made for leave to appeal to the Appellate Division; and, in the event of the refusal by the Appellate Term to grant such leave, then until the refusal by a justice of the Appellate Division to grant the permission to appeal; and, if the application is granted, until the hearing and-determination -of said appeal in the Appellate Division, if the appeal he taken and proper security he given.

Geo. H. Corey, for appellant.

George A. McLaughlin, for respondents.

Page, J.

The order below is based on a misapprehension of the nature of an appeal to the Appellate Division from this court. The appeal, if allowed, is not from the judgment of the City Court that was reviewed by the justices holding the Appellate Term, hut from their determination of the appeal. Code Civ. Pro., § 1344; Lesster v. Lawyer’s Surety Co., 50 App. Div. 181, 185. Whether there shall be such an appeal rests not with the Appellate Term, hut with the justices who determined the appeal, or,.on their refusal, *311with the justice of the Appellate Division to whom application may be made.

It is entirely competent for those justices to grant a stay of proceedings pending the application. Stern v. Barrett Chemical Co., 124 App. Div. 377, 381. But no other judge or court has that power. The appeal from the Supreme Court to the Court of Appeals, by virtue- of section 191, subdivision 2, of the Code of Civil Procedure, is taken from the judgment of affirmance and not from the determination of the Appellate Division; hence section 1310 is not añade applicable to appeals from the determination of the Appellate Term by section 3192. In the case of Genet v. D. & H. C. Co., 113 N. Y. 472, relied upon by the respondents, the order appealed from was not a mere stay of proceedings, which the Special Term had unquestioned power to grant (Code Civ. Pro., § 1371), but was an order suspending the operation of a judgment in an equity case, and was justified by the Court of Appeals as an exercise of the equitable jurisdiction of the court, as will appear from this sentence,’ which was omitted from the body of the quotation from that case in respondents’ brief, without indicating the omission: *“*While it may be said that the order, in some sense, interferes with the judgment, by postponing its enforcement, we think this was within the competency of the Special Term in the exercise of its equitable jurisdiction.” The omission of this sentence from the quotation may have been unintentional, but counsel should verify quotations in their briefs, so that the court may have some degree of confidence in their accuracy.

When the remittitur of this court came down to the City Court, that court had no power except to enter the judgment in accordance with the determination of this court and enforce the judgment. Typothetae v. Typographical Union, 138 App. Div. 295.

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

Seabuby and Bijub, JJ., concur.

Order reversed and motion denied.