From the very imperfect 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 plaintiff’s notice of appeal informs us that he appeals from a judgment rendered by the Supreme Court of the first district, on the 17th of September, 1859, as such judgment was modified by the general term of said court, on the 31st day of May, 1860. The return to this court does not show any judgment rendered on the 17th of September, 1859, but only a record, filed on that day, which repeats the judgment pronounced on the previous 29th of June. 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 17th, 1859, at 2 o’clock, p. m.” If we were 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 the 17th of September, 1859, there would still remain the difficulty that it does not appear ever to have been appealed from, or in any way modified at any general term.
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 the 27th of June, 1859 (the record of which appears to have been filed on the 17th of September), as such judgment was modified by the general term, the 31st of May, 1860. We then search the record for the judgment of the general term mentioned in the notice, but ho such judgment is found. The record shows no judgment of any term, general or special, rendered on the 31st day of May, 1860, or at any time in that year. There is what purports to be an order of June 27th, 1859, but 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 27th, and several other orders, that it was the judgment of the general term upon those 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
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, 327), 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 27th, I am of opinion that the plaintiff had a right to appeal from that order to this court, and on such appeal, to have the order of June 27th, and perhaps that of May 25th, reviewed here ; though as to the last there is great doubt, as the affidavits referred to in the order of May 10th, 1858, on which that of May 25th, 1859, was based, are no part of the record, and consequently are not before the court. The order of the 27th of‘June was a final judgment, and it was rendered upon the actual determination of the court and not upon default, although it was granted upon the failure of the plaintiff to comply with the terms of the order of the 25th of May. It justified the filing of the record of it, as appears to have been done, on the 17th of September, and entitled the defendants to an execution for the $4,131.11., which it adjudges to them for the costs of the action. The judgment thus rendered was with some modification affirmed by the general term, as was conceded, by the respondent’s counsel, on the argument of the motion here, though the record does not show it with certainty, and as such affirmance was after argument in behalf of appellant and respondents, it was an actual determination of the general term. The case is therefore directly within the
If 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. "
This case differs materially from any of those referred to by the respondent’s counsel. In Briggs a. 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 the 25th of May, and not from the final judgment. In that case, the judgment appears to have been entered by default, after the answer was stricken out; in this, it was entered after argument by counsel for all the parties.
The appeal in Sherman a. Felt (2 N. Y., 186) was from an order granting a motion to set aside a decree obtained by default; and in Fort a. Bard (1 Ib., 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 a. Nicholson (4 How. Pr., 140), the order appealed from, although it directed that the plaintiff have judgment as 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 a. 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 Delow, 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
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 $10 costs of this motion, and to cause the amended return to be. filed with the clerk of this court, and three printed copies to be served on the respondent’s attorney by the 18th of December 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.
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 its merits, without reference to them.
So far as the order of May 25th, 1858, directs the names of
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 reviewed there, as an order not made by consent.
The motion should be denied.