COURT OF APPEALS.

#### Bamberg agt. Stern

*Jurisdiction of court of common pleas to hew appeals from marine court'— Order' as distinguished from a*judgment— *Bankruptcy composition.*

No jurisdiction has been conferred upon, or exists, in the court of common pleas to review, upon appeal, *orders*made by the marine court; its appellate jurisdiction in respect to the determinations of that court is confined to appeals from *judgments only.*

The plaintiff brought action for goods sold and delivered, and a judgment was had by default. The plaintiffs, on affidavits alleging fraud, obtained his arrest before judgment. The defendant, meanwhile, effected a composition in bankruptcy with his creditors. His counsel applied for a stay of proceedings on the judgment at the special term of the marine court, which application was denied. An appeal was taken from the order denying the stay to the general term of the marine court, where *263the special term order Was reversed and the plaintiffs were thereupon stayed :

*Meld,*that the proceeding was. an *order*and *not a judgment,*and was, therefore, not appealable to the common pleas

*March,*1879.

The action was brought in the marine *court,*for goods sold and delivered, and a judgment was had by default. The plaintiffs, on affidavits alleging fraud by defendant in securing the credit of the goods in question, obtained his arrest before judgment.

The defendant, Stern, meanwhile effected a composition in bankruptcy with Ms creditors. His counsel applied for a stay of proceedings on the judgment at the special term of the marine court, which application for a stay was denied. An appeal was taken from this order denying the stay to the general term of the marine court, where the special term order was reversed, and the plaintiffs were thereupon stayed, the general term, marine court, holding that all debts, whether fraudulently contracted or not, were barred by a composition in bankruptcy.

The plaintiffs, by their counsel, thereupon appealed to the general term of the court of common pleas. At the argument there, objection was made by defendant’s counsel, that the order appealed from was not reviewable by that court. The general term of common pleas overruled that prelimmary objection, but nevertheless affirmed the order of the marine court, general term, upon its merits. The plaintiffs appealed from the order of the common pleas, general term, to the court of appeals. The respondent again raised the point that the order of marine court, general term, was not appealable to the common pleas, and consequently not to the court of appeals, as the law limits appeals from the marine court to judgments and orders granting new trials.

*Mari <& Bamberger,*for plaintiffs and appellants.

*William Slrcmss,*for defendant and respondent.

*264Andrews, *J*.

This is an appeal from, an order of the general term of the Hew York common pleas affirming on appeal an order of the general term of the marine court, which reversed an order of the special term of that court denying a motion for a perpetual stay of execution on the judgment in this action, and granted the motion.

The determination of the marine court, from which the appeal to the common pleas was taken, was an order and not a judgment *(Monroe*agt. Upton, 50 N. *Y.,*593); and the point is taken in *Imwne*by the respondent’s counsel, that no jurisdiction has been conferred upon or exists in the court of common pleas to review upon appeal orders made by the marine court, but that its appellate jurisdiction in respect to the determinations of that court is confined to appeals, from judgments only.

If this point is well taken it will be our duty to review the order appealed from without examining the merits.

If the common pleas had no jurisdiction to entertain the appeal from the order of the marine court, its determination is a nullity, and the only province and .power of this court in the premises is to set aside the unauthorized order of the court of common pleas.

On looking into the statutes governing the appellate jurisdiction of the common pleas, we do not find any authority vested in that court to review an order made by the marine court, except in a single instance, which will be referred to hereafter. With that exception, its appellate jurisdiction in respect to the marine court is confined to appeals from judgments rendered by the general term of that court. Section 34 of the original Code, as amended in 1849, conferred upon the court of common pleas the *“*power to review the judgments of the marine court of the city of Hew York, and óf the justices’ courts of that city.”

This, so far as I have been able to find, was the first statute conferring upon the common pleas appellate jurisdiction over the marine court.

*265Chapter 5, title 11 of the Code regulates appeals to the common pleas and to the county courts and inferior courts, and on looking at the provisions in that chapter, and especially sections 352 and 354, it will he seen that they apply to appeals from judgments only, and that appeals from orders were not within the contemplation of the legislature.

It is quite plain that the word “ judgments,” in the three hundred and fifty-fourth section, was used in its usual sense, and did not include determinations not resulting in judgments as that term is used in the Code and is generally understood.

This was the state of the law in respect to appeals to the common pleas from the marine court until the passage of the act, chapter 545 of the Laws of 1874, the ninth section of which, after providing that the appeal from the general term of the marine court, prescribed in section 352 of the Code, shall be from an actual determination at such general term only, and shall be taken within twenty day after written notice of the judgment, proceeds as follows: *“*And an appeal may be taken in like manner from an order granting a new trial, provided the notice of appeal contains an assent,” &c. This section contains the only authority in the statutes which we have found giving the right to appeal to the common pleas from an order of the marine court, and is confined to an appeal from an order granting a new trial. Section 43 of chapter 479 of the Laws of 1875, relating to the jurisdiction of the marine court, recognizes that appeals from the marine court to the common pleas may be taken in two cases — first, from judgment; and, second, from an order granting a new trial — and the inference is very strong that in other cases no right of appeal exists. The tenth section of chapter 629 of the Laws of 1872 is also very significant of an intention on the part of the legislature not to confer upon the common pleas jurisdiction of appeals from orders of the marine court. Chapter 617 of the Laws of 1853, section 5, gives an appeal to the general term of the marine court from a judgment entered by direction of a single judge, but made no mention *266of orders. The tenth section of the act of 1872 remedied this omission, and allowed an appeal from orders made by a single justice of the marine court, *“*but only to the general term of the said marine court.” The Code of Civil Procedure does not affect the question under consideration.

I am brought, upon examination of the question, to the conclusion that the common pleas had no jurisdiction of the appeal in this case; and the order of that court is, therefore, reversed. The effect of this is to leave the order of the general term of the marine court undisturbed; but we pass no opinion upon the correctness of the order upon the merits.

All concur.