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Costs IN REPLEVIN,-continued.

of clothing, plaintiff recovered judgment for the assessed value of the portion of the clothing sold after a certain date, and defendant recovered a verdict for the assessed value of the portion sold prior to the same date, with damages, each sale constitutes a separate cause of action, and each party is entitled to costs, although the complaint sets forth but a single cause of action.

Ackerman v. De Lude, 36 Hun, 44.

The case last cited was overruled by the following case on the ground that the complaint must set forth separately two or more causes of action.

The defendant is not entitled to costs where the complaint in the action to recover possession of several chattels contains but one count, and the answer sets up several defenses, some covering the whole property, others applying only to a portion, although both parties succeed as to part of the property replevied.

Newell Universal Mill Co. v. Muxlow, 115 N. Y. 170; 21 N. E. 1048; 24 St. Rep. 545; 17 Civ. Pro. 238; rev'g 51 Hun, 453; 20 St. Rep. 914; 4 Supp. 197; 16 Civ. Pro. 153.

A complaint which alleges in a single count the wrongful taking and detention of certain specified goods and a refusal to deliver them on demand, although such goods were sold to defendant's assignor at different times and delivered at different places, does not set forth two or more causes of action so as to entitle defendant to costs on the recovery by him of part of the property.

Ackerman v. O'Gorman, 17 Civ. Pro. 275; 25 St. Rep. 170; 2 Silv. S. Ct. 109; 6 Supp. 825.

In an action to recover certain articles of personal property, which the defendant, a sheriff, had levied upon under an execution, where the complaint contains but a single count, and the referee decided that the plaintiff was entitled to recover certain of the articles which had been transferred to him by the debtor's wife, and that the other articles transferred to him by the debtor were the property of the debtor, and that the defendant had acquired a special property therein to the amount of the execution, the plaintiff only is entitled to costs.

Kilburn v. Lowe, 37 Hun, 237.

In an action to recover possession of goods sold at different times the complaint alleging a cause of action for all the goods contains but a single count and does not entitle defendant to costs, although he recovers a portion of the property.

Mertens v. Fitzwater, 53 Hun, 597; 25 St. Rep. 305; 6 Supp. 797; 17 Civ. Pro. 277.

Appellate Division.

[Oct

DONNELLY V. CITY OF NEW YORK.

(54 App. Div. 155; 100 St. Rep. 411; 66 Supp. 411.]

(Supreme Court, Appellate Division, Second Department. October 26,

1900.)

COURT OF APPEALS-JURISDICTION-GROUND FOR APPEAL_STATUTE-CON

STRUCTION. Code Civ. Pro. $ 191, subd. 2, providing that no appeal shall be taken

to the court of appeals from a unanimous -ffirmance of a judgment by the appellate division rendered in an action “to recover wages, salary, or compensation for services,” except on certain conditions, refers only to cases where the claim for such wages, salary, or compensation arises out of a contract relation, and not where the compensation is determined by statute as an incident to a public office.

NOTE.—WHEN APPEAL LIES TO THE COURT OF APPEALS.

a. Scope of note.-References.
b. The statute.
c. When appeal matter of right.

1. In general.
2. Final orders and judgments.
3. Mandamus.

4. Certiorari.
d. Leave of court.

a. Scope of note.-References.

An exhaustive note on "What is Appealable to the Court of Appeals Under the New Constitution” was published in 1897 in 3 Ann. Cas. 276–282. The present note covers the period since 1897, and is supplementary to the other note.

For note on “Time to Appeal to Court of Appeals," see 7 Ann. Cas. 125130. For note on “Certification of Questions to Court of Appeals," see 7 Ann. Cas. 28-30. For note on "What is Unanimous Decision of Appellate Division," see 7 Ann. Cas. 229-232.

1900]

Donnelly v. City of New York.

Action by Felix Donnelly against the city of New York. From a judgment of the appellate division (53 App. Div. 447; 99 St. Rep. 1030; 65 N. Y. Supp. 1030) affirming a judgment in favor of the defendant, plaintiff moves for leave to appeal to the court of appeals. Motion denied.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

John A. Quintard, for the motion.

JENKS, J. We think that the language of subdivision 2 of section 191 of the Code of Civil Procedure, with reference to actions to recover wages, salary, or compensation for services, refers only to cases where the claim for such wages, salary, or

WHEN APPEAL LIES TO THE COURT OF APPEALS,-continued.

b. The statute.

The only statutory changes upon the question of appeals to the court of appeals during the period covered by this note, are in § 191, subd. 2, Code of Civil Procedure, and extend the provision prohibiting appeals as of right, where the decision of the appellate division was unanimous, to actions to recover wages, salary, or compensation for services, including expenses incident thereto, or damages for breach of any contract therefor, and to actions upon an individual bond or individual undertaking on appeal.

c. When appeal matter of right.

1. In general. An appeal will lie, as a matter of right, only from final judgments in actions, final orders in special proceedings and from orders granting new trials on exceptions when a proper stipulation is given.

Van Arsdale v. King, 155 N. Y. 325; 49 N. E, 866.

An appeal cannot be taken from an "order" the appellate division dis. missing an appeal from the judgment below. The proper practice is to enter a judgment of dismissal upon the order and then appeal from such judgment.

Stevens v. Central National Bank, 162 N. Y. 253; 56 N. E. 628.
No appeal lies from the determination by the appellate division of a

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compensation arises out of a contract relation, and that the subdivision does not apply to a case like this, where the compensation is determined by statute as an incident to a public office. In Boyd v. Gorman, 157 N. Y. 365, 368; 52 N. E. 113, the court, per Vann, J., discussing the incorporation of the subdivision in question, say:

“Thus, we have progressive action towards the single object of relieving a court overburdened with work. The legislature, in the exercise of its power to restrict appeals, wisely selected those classes of actions in which the law has been so well settled for so long a period as to make a second appeal unnecessary, except in rare instances, involving new questions, when permission can readily be obtained.”

Actions of a character similar to this do not meet the reason given by the court for the restriction, inasmuch as they actually require the construction of express statutory provisions, rather than the application of well settled general principles of law. For these reasons, we think that the motion should be denied, as not necessary in this case. Motion denied, without costs.

All concur.

WHEN APPEAL LIES TO THE COURT OF APPEALS,-continued.

question of law, when the latter is dependent upon the determination of a question of fact.

Lamkin v. Palmer, 164 N. Y. 201; 58 N. E. 123.

So an appeal does not lie from the determination of the appellate divi. sion in reversing a decree of the surrogate upon the facts.

Matter of Thorne, 162 N. Y. 238; 56 N. E. 625.

Thus a question of fact, which the court of appeals cannot review, is involved upon the appeal from an order of the appellate division reversing "upon the facts and the law," a decree of the surrogate's court confirming the report of an appraiser levying a transfer tax, where the surrogate rejected and the appellate division accepted the version of the beneficiary's story most favorable to herself.

Id.

So an order of the appellate division is not appealable which reversed a conviction for assault, the reversal stating that it was ordered and adjudged that the judgment appealed from should be reversed, as the jurisdiction of

WHEN APPEAL LIES TO THE COURT OF APPEALS, --continued.

the court of appeals is limited to questions of law, and such order does not show that the reversal was not based on the evidence.

People v. O'Brien, 164 N. Y. 57; 58 N. E. 117.

No appeal lies from an order of the appellate division reversing, upon the law and the facts, when questions of fact are involved which that court has the power to review, although there is an apparent conflict between the order of reversal and the opinion below as to whether the facts involved were reviewed.

Spies v. Lockwood, 165 N. Y. 481; 59 N. E. 267.

In the case last cited, the court held itself bound by the statements contained in the order as to the action of the appellate division upon the facts.

So no appeal lies from `n order of reversal stating that it was upon the tacts and the law, unless the record shows no controversy whatever as to material facts.

Livingston v. Albany, 161 N. Y. 602; 56 N. E. 148.

And an order of reversal of the appellate division, stating that the reversal was upon the facts and the law, is conclusive upon the court of appeals that a question of fact is actually involved except when the record discloses that there are neither facts nor inferences from conceded facts in opposition to the decision of the trial court.

Id.

When the appellate division, in an action for personal injuries, overrules exceptions ordered heard by it in the first instance, denies a motion for a new trial and orders judgment on the verdict, such judgment is one of af. firmance with in the meaning of $ 191 of the Code of Civil Procedure and when the decision of the appellate division is unanimous no appeal lies, as of right, to the court of appeals.

Huda v. American Glucose Co., 151 N. Y. 549; 45 N. E. 942.

The court of appeals will hear an appeal from an order of reversal of the appellate division where such order contains a statement that the reversal was upon the law only "the court having examined the facts and found no error therein."

Judson v. Central Vermont R. Co., 158 N. Y. 597; 53 N. E. 514.

Under $ 1338 of the Code of Civil Procedure, the court of appeals is not deprived of jurisdiction of an appeal from a judgment reversing a judgment entered upon the report of a referee, or a determination in the trial court, or from an order granting a new trial, unless it clearly appears in the record body of the judgment or order appealed from that the reversal was upon the facts.

Wetmore v. Wetmore, 162 N. Y. 503; 56 N. E. 997.
People v. Barker, 165 N. Y. 305; 59 N. E. 137.
Village of Champlain v. McCrea, 165 N. Y. 264 ; 59 N. E. 83.
Thus, where the appellate division's reversal of the trial court's judgment

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