By the Court. —
— From the very imper-
fect manner in which the proceedings in this case are presented on the record brought here for review, it is difficult to ascertain the facts necessary to be understood in deciding this motion. The plaintiffs notice of appeal informs us that he appeals from a judgment rendered by the supreme court of the first district, on September 17, 1859, as such judgment was modified by the general term of said court, on May 31, 1800. The return to this court does not show any judgment rendered on November 17, 1859, but only a record, filed on that day, which repeats the judgment pronounced on the previous June 29. If this recital, which appears to be only the conclusion of the record, is to be regarded as the judgment described in the notice of appeal, there is nothing to show when or where, or by whom it was rendered; though it does appear, by a memorandum at the foot of it, to have been “filed September 17, 1859,at 2 p. m.” If we are to exercise the faculty of guessing, and thus arrive at the conclusion that it was made by some judge at some special term in the first district, on or about September 17, 1859, there would still remain the difiicultythat it does not
To find grounds for this appeal, it becomes necessary to adopt some other presumption, and none seems more probable than that the appellant intended by his notice to appeal from the judgment pronounced at the special term, on June 37,1859, (the record of which appears to have been filed on September 17), as such judgment was modified by the general term, Hay 31, 1860. We then search the record for the judgment of the general term mentioned in the notice, but no such judgment is found. The record shows no judgment of any term, general or special, rendered on May 31, 1860, or at any time in that year. There is what purports to be an order of June 37, 1859, bur when or by whom it was made we have no means of ascertaining. We should presume from its recital of appeals from the “judgment order,” as it is called, of June 37, and several other orders, that it was the judgment of the general term upon these appeals, but if it was so, the record fails to show it. So far as that shows, the order may as well have been made by the board of aldermen as by the general term of the supreme court. It is very probable that this was a judgment of the general term, and pronounced on May 31, 1860, but we cannot exercise the jurisdiction of an appellate court, upon probabilities however strong; on the contrary, the record must show with certainty the facts upon which such jurisdiction depends. It follows that, upon the present state of the record, there is nothing which this court can review.
The careless manner in which the case comes here, would justify the unconditional dismissal of the appeal; but as an attempt in good faith seems to have been made to appeal, and the defects pointed out, perhaps merely clerical, are such as under the liberal rules which now prevail may be corrected by amendment (Code, §§ 174, 337), and the time for appealing has expired, it is proper to give an opportunity for such correction, if the plaintiff has in fact a right to a review of the judgment below attempted to be appealed from.
Assuming that the order last above mentioned was a decision of the general term of the supreme court, rendered on an appeal from the order of June 37,1 am of opinion that the plain
It was obvious, as is claimed by the respondent’s counsel, that the judgment and the orders sought to be reviewed presented mere questions of practice, or were such as rested entirely in discretion, we should dismiss the appeal on that ground, and it may be found on full argument that such is the character of the questions presented, but the case is complicated, and it does not appear so clearly to the court now that such is the case as to justify, for that reason, a dismissal of the appeal on this motion.
The case differs materially from any of those referred to by the respondent’s counsel. In Briggs v. Bergen, 23 N. Y. 162, the appeal was not from the judgment, but from the order striking out the answer.
This case would have been the same if the appeal had been from the order of May 25, and not from the final judgment. In that case, the judgment appears to have been entered by
The appeal in Sherman v. Felt, 2 N. Y. 186, was from an order granting a motion to set aside a decree obtained by default ; and in Fort v. Bard, 1 Id. 43, it was from an order denying a.like motion; both calling for the exercise of discretion in mere matters of practice, which this court does not review.
In the case of Dunham v. Nicholson, 4 How. Pr. 140, the order appealed from, although it directed that the plaintiff have judgment for want of an answer, was interlocutory and not final, as it provided that the defendant should “ submit to an examination on oath concerning his property, and the judgment to be given.”
The appeal in James v. Chalmers, 6 N. Y. 209, was from a final judgment, and on that appeal it was sought to reverse an order denying a motion by the appellant before trial in the court below, to stay the proceedings in that suit until after the trial of another action relating to the same matter. This court held that the order did not involve the merits, or necessarily affect the judgment, and was not reviewable here. No other cases were referred to as sustaining the present motion on the conceded facts, and these fall short of it.
There being, as I believe, a substantial right of appeal, though defectively presented by the record, the appellant should be allowed to withdraw the return, with a view to the correction of the record in the court below, and the amendment of his notice of appeal, if he shall be so advised; and he should be required to pay ten dollars costs of this motion, and to cause the amended return to be filed with the clerk of this court, and these printed copies to be served on the respondent’s attorney by December 18 next, unless the time shall be extended by one of the judges of this court, and in that case within the extended time, and in default of so doing, the appeal to stand dismissed, with costs to the respondents.
II. January, 1863. — The appellant then amended his case by
By the Court. —
— A motion was made at the last September term to dismiss the appeal, for want of jurisdiction in this court to hear it, which was granted conditionally, on account of formal defects; but the opinion was then expressed that the judgment attempted to be appealed from was a final judgment, which might be subject to review in this court.
The motion to dismiss the appeal is now reviewed, the appellant having made an effort to remove the formal objections. I •have not examined the return particularly to ascertain how far that effort has been successful, for the reason that the respondent’s counsel expressed a desire, whether the technical objections were removed or not, that they should be disregarded, and the motion decided upon ifs merits, without reference to them.
So far as the order of May 25, 1808, directs the names of the non-resident partners of Louis Emile Lahens to be stricken out of the bill of complaint filed by him, I am inclined to think it was a mere question of practice, depending upon the exercise of discretion, which is not subject to review here; and if there were nothing else in the order, I should think the present appeal might properly be dismissed; but the further direction, requiring the remaining plaintiff to make them defendants, and prescribing what allegations he should insert in his amended complaint, presents questions of A different character. It would not be proper on this motion to decide whether that direction was erroneous or otherwise, but only whether it is such a direction as this court can examine, and, if satisfied, after hearing counsel in regard to it, that it is erroneous, can correct. I am of opinion that the present appellant had a right to insist upon bringing his cause to trial, after the names
The order or judgment of dismissal shows upon its face that it was opposed instead of being consented to by the appellant’s counsel; at least such, is the inference from its recitals; and besides, it was appealed from to the general term and revived there, as an order not made by consent.
The motion should be denied.