27 N.Y.S. 461 75 Hun. 512

(75 Hun, 512.)


(Supreme Court, General Term, Fourth. Department.

February 15, 1894.)

1. Appeal&emdash;Interlocutory Judgment.

Where a referee finds, as a conclusion of law, that plaintiff is entitled-to the accounting demanded in the complaint, a judgment containing a provision to that effect, entered on the report, is interlocutory.

2. Same&emdash;Judgment on Report of Referee.

An interlocutory judgment, entered on the report of a referee, is not appealable.

3. Same&emdash;Dismissal.

An appeal from a nonappealable judgment will be dismissed, though no-objection is made by respondent.

Appeal from special term, Otsego county.

Action by Caroline R. G-arczynski against Dorr Russell, individually, and as executor of, and trustee under, the will of Lucy G-. Russell, deceased, Arthur D. Russell, Lucie Russell, and Minnie Russell. From an interlocutory judgment entered January 27,. 1893, on the report of a referee, defendants appeal. Dismissed.

*462Argued before HARDEST, P. J., and MARTIN" and MERWE7, JJ.

Johnson & Lamb and E. M. Harris, for ¿ppellants.

George M. Weaver and A. M. Beardsley, for respondent


This action was in the nature of a creditor’s bill. A portion of the relief sought was that an accounting should be ordered to be made, by the estate of Lucy G. Russell, of the railroad stocks, bonds, securities, and other property, deposited with Edward G. Clark, and transferred to her, and of the proceeds and avails thereof, and all other moneys and property received by her, directly or indirectly, from Dorr Russell, and of the rents, issues, and profits thereof, and that, if it should appear that Lucy G. Russell paid anything from her own separate estate for the Bowers mortgage, and that her estate should be credited and allowed the moneys so paid, then that an accounting should be ordered, and an account be taken of the moneys so paid, and also of the moneys, income, property, and profits received by her, or by any other person for her use, or by the defendants, or either of them, and of the balance, if any, remaining unpaid, and due to her, or her estate, to the end that the said farm or property might be sold, subject to her lien for such unpaid balance, and the proceeds applied to the payment of the plaintiff’s judgment; that, apon such accounting, the defendants, and the estate of Lucy G. Russell, be charged with any or all moneys or property paid by Dorr Russell, directly or indirectly, for the Clark mortgage, and with the railroad stocks, bonds, securities, and other property, deposited by Russell with Clark, and subsequently delivered to Lucy G. Russell, or to or for her benefit. The referee found, as .a conclusion of law, that the plaintiff- was entitled to the accounting demanded in her complaint, and the judgment entered upon such report contained a provision to that effect.

The appellants, in their brief, claim that the judgment directed by the reféree, and entered upon his report, is not final, but a mere interlocutory judgment. We think this contention must be sustained. Some of the earlier cases seem to hold a contrary doctrine, but the case of Dorchester v. Dorchester, 121 N. Y. 156, 23 N. E. 1043, which is the latest case that has come to our notice, is so nearly like the case at bar that we must either disregard that case as an authority, or hold, with the appellants, that the judgment appealed from is interlocutory, and not final. We think the judgment must be treated as interlocutory. Therefore, at the threshold of the investigation of this case, the question presents itself, whether an appeal could properly be taken from such a judgment. It not being a final judgment, it was not appealable, under the provisions of section 1346 of the Code of Civil Procedure. And, as an inspection of the judgment shows that it was not rendered at a special term, circuit or trial term of this court, but upon the report of a referee, it was not appealable under the provisions of .section 1349 of the Code, as it stood when this appeal was taken. It appears from another appeal book, which was handed up on *463appeal from an order made by the special term in this case, that the form of the judgment was settled by the special term, and leave given to enter it as the judgment upon the referee’s report in the action, but there is nothing in the appeal book furnished us on the appeal from the judgment in this case which discloses the existence of any such order. Even if we were to assume, which we think we cannot, that the order should be considered in determining whether the judgment appealed from was entered upon the report of a referee, or entered at a special term of this court, yet it is quite obvious that the order of the special term, at most, determined the form of the judgment to be entered upon the report, that the report of the referee was the basis of the judgment, and that it was not rendered at a special term, within the meaning of section 1349 of the Code, but rendered upon the report of a referee.

Assuming, then, as we think we must, that the judgment was entered upon the report of a referee, and that it was interlocutory, and not final, it is quite manifest that the only method of reviewing it, which existed when this appeal was attempted to be taken, was by a motion for a new trial upon the exceptions, under section 1001 of the Code. While section 1349 of the Code has since been amended by an act passed May 6, 1893, to take effect the 1st of September, 1893, so as to give the right of appeal from a judgment thus entered, yet, as the appeal in this case was taken in March of that year, the defendants had no right to appeal from such a judgment, under the statute as it existed at the time when the appeal in this case was taken. Under these circumstances, we see no way to properly dispose of this case except to dismiss the appeal.

Although the respondent has raised no question as to the appellants? right to appeal, we are unable to perceive how such omission confers upon this court authority to determine the questions sought to be reviewed, in the absence of any law authorizing the appeal. As a general rule, the right of appeal is purely statutory, and can be taken only from such judgments as are designated, expressly or impliedly, by the statute authorizing the appeal, and it must be taken within the time and by the mode prescribed. Parties cannot appeal by their own acts, where no appeal is authorized by law, nor can they, by their own acts, create a right of appeal, as jurisdiction of appeals is created by law. To permit parties to create such a right would be a violation of the rule that parties cannot create jurisdiction of the subject by consent. Elliott’s App. Proc. § 75 et seq. This question is not one of mere irregularity, but relates to the right of the party to appeal from such a judgment, and, hence, to the authority of this court to determine the questions involved. The question is not one of practice, but of power; is not one of discretion, but of jurisdiction. In Kundinger v. City of Saginaw, 59 Mich. 355, 364, 26 N. W. 634, it was held that the right to appeal from one tribunal to another is statutory. In Kramer v. Railroad Co., 5 Ohio St. 140, 147, in discussing the question of the determination of freeholders, in condemnation pro*464ceedings, it was said: “It might have been more judicious to have provided for reviewing their determination; but this was a matter of legislative discretion, not to be revised by the judiciary." In City of Minneapolis v. Wilkin, 30 Minn. 140, 144, 14 N. W. 581, it was said: “The right of appeal is purely statutory, and does not exist when not given by statute. Indeed, it has been held that an existing right of appeal may be taken away by repeal of the statute, even as to causes previously appealed,”—citing Ex parte McCardle, 7 Wall. 506. It was held, in State v. Meeker, 19 Neb. 444, 26 N. W. 620, that the right of review, by appeal or proceedings in error, is a statutory one, citing Wilcox v. Saunders, 4 Neb. 569, and State v. Ensign, 11 Neb. 531, 10 N. W. 449. In Ex parte Ferry Co., 104 U. S. 519, Waite, C. J., said: “If there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is the judgment of the court of last resort, and concludes the parties.” Many other cases, in different commonwealths, might be cited to sustain the general doctrine that the right of appeal exists only when conferred by statute, and can be taken only in the time and mode prescribed. It is, however, unnecessary to rely upon this general principle relating to appeals, as the case of Dorchester v. Dorchester, 121 N. Y. 156, 23 N. E. 1043, is a direct authority upon the precise question under consideration. In that case it was held that the provisions of the Code of Civil Procedure, (section 1349,) as to appeals to the general term from interlocutory judgments, do not authorize that court to review, upon the facts, an interlocutory judgment entered upon the report of a referee. A motion at the general term for a new trial, after entry of an interlocutory judgment upon the report of a referee, as authorized by the Code, (section 1001,) brings up only questions of law. Before the case can be reversed by the general term upon the facts, where an interlocutory judgment has been so entered, there must be a final judgment, and then the law and facts may be reviewed on appeal therefrom. Sections 1301, 1316, 1317, 1336, 1337. In that case there was an appeal to the general term from an interlocutory judgment, entered upon the report of a referee, which was very similar to that in this case, and there was also a motion for a new trial, and the general term reversed the judgment, the order of reversal stating it was upon the facts, and it was held that the order was unauthorized, as the court had no power to review the facts; that, as the order was an actual determination of the general term, although made without power, it was reviewable in the court of appeals; and that, as it appeared "from the order that the court below had not exercised the power it did possess, of reviewing the judgment for an error of law upon a motion for a new trial, the order should be reversed, and the case remanded to the general term for a hearing upon the questions of law. In delivering the opinion in that case, Judge O’Brien says: “Certain interlocutory judgments may also be reviewed by the general term, on appeal taken in pursuance of the provisions of section 1349, but this section does not authorize the general term to review an interlocutory judgment entered upon the report of a referee.” *465That case seems to be decisive of the question under consideration, and, as there was in this case no motion for a new trial, under section 1001 of the Code, the case is not properly before us. and the defendants’ appeal must be dismissed. Knowlton v. Atkins, 134 N. Y. 313, 322, 31 N. E. 914; Bullion v. Bullion, 73 Hun, 437, 26 N. Y. Supp. 337.

Appeal dismissed with costs. All concur.

Garczynski v. Russell
27 N.Y.S. 461 75 Hun. 512

Case Details

Garczynski v. Russell
Decision Date
Feb 15, 1894

27 N.Y.S. 461

75 Hun. 512

New York



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