Elwood v. . Roof
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the third judicial department, reversing an order of Special Term which directed judgment for plaintiff on the ground of frivolousness of the answer of defendant, Nancy Roof. Where the General Term assumes jurisdiction which it has not, or refuses to exercise jurisdiction which it possesses, to review proceedings at Special Term, this court will review its action and reverse it if wrong.
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Appeal from order of the General Term of the Supreme Court in the third judicial department, reversing an order of Special Term which directed judgment for plaintiff on the ground of frivolousness of the answer of defendant, Nancy Roof. Where the General Term assumes jurisdiction which it has not, or refuses to exercise jurisdiction which it possesses, to review proceedings at Special Term, this court will review its action and reverse it if wrong. (People v. Ferris, 36 N. Y. 218 ; People v. N. Y. C. R. R. Co., 29 id. 418, 423; Martin v. Windsor Hotel, 70 id. 101; Code, § 190, subd. 2 ; N. Y.…
1Opinion of the CourtRapallo, J.
The appeal to the General Term was from an order of the Special Term, directing judgment for the plaintiff on account of the frivolousness of the defendant’s answer. An appeal lies to the General Term from such an order before the entry of judgment in pursuance thereof. In respect to an appeal to this court the rule is different. '
The point that the direction appealed from is not an order, but a mere allocatur, is untenable. It is entitled as a Special Term order, and stated at foot to have been entered. It in effect adjudges the answer frivolous and the plaintiff to be entitled to judgment…
2Cited by3 opinions
- Halliday v. BarberAppellate Terms of the Supreme Court of New York · 1902
- Smith v. ThompsonAppellate Division of the Supreme Court of the State of New York · 1907
- Charlton v. WebsterNew York Court of Common Pleas · 1892