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

An appeal does not lie to the court of appeals from orders of the appellate division reversing orders settling the accounts of a receiver in foreclosure and denying a motion to direct a sequestration to determine whether a fund in question is covered by the lien of a mortgage, as such orders are intermediate.

New York Security & Trust Co. v. Saratoga Gas & Electric Light Co. 156 N. Y. 645; 51 N. E. 297.

An order to show cause why a judgment debtor should not be punished for contempt is a proceeding in the action and therefore not appealable to the court of appeals as a matter of right.

Jewelers' Mercantile Agency v. Rothschild, 155 N. Y. 255; 49 N. E. 871. An order is not a final order in a special proceeding and therefore appealable to the court of apepals, which adjudged a party in contempt for disobeying a judgment and providing for a reference to take proof as to damages, but such order is one made in the action in which the judgment was obtained.

Ray v. N. Y. Bay Extension R. Co. 155 N. Y. 102; 49 N. E. 662. Likewise, an appeal will not lie from an order of the appellate division reversing an order vacating an execution against the person of the judg ment debtor, as such order is not a final order in a special proceeding.

Steamship Richmond Hill Co. v. Seager, 160 N. Y. 312; 54 N. E. 574. So for the same reason an appeal does not lie to the court of appeals from an order of the appelate division reversing an order vacating and setting aside a final order and judgment in condemnation proceedings. City of Johnstown v. Wade, 157 N. Y. 50; 51 N. E. 397.

An order of the appellate division, reversing a determination of the special term modifying a decree for alimony by reducing the amount thereof, is appealable to the court of appeals, as it is either a final judgment in an action or a final order in a special proceeding.

Wetmore v. Wetmore, 162 N. Y. 503; 56 N. E. 997.

So an appeal lies from an order made by a justice of the supreme court and affirmed by the appellate division as a result of a summary investigation into the financial affairs of a village instituted by taxpayers and freeholders under the general municipal law (L. 1892, Ch. 685, Sec. 3), as such order is a final order in a special proceeding.

Matter of Taxpayers of Plattsburgh, 157 N. Y. 78; 51 N. E. 512.

An application for the examination of witnesses before action, made under the act to prevent monopolies (L. 1897, Chap. 383), is not a special proceeding, and an order of the appellate division affirming an order vacating an order for such examination is not appealable to the court of appeals. Matter of Attorney-General, 155 N. Y. 441; 50 N. E. 57.

An order denying a motion to vacate a previous order granting leave to sue on a judgment and to vacate the judgment entered in such action does

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

not determine the action and no appeal lies therefrom to the court of appeals.

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

An order determining the petition of a claimant for payment from a receiver appointed in foreclosure is not a final order in a special proceeding, and is not appealable as of right to the court of appeals.

Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. Co. 160 N. Y. 1; 54 N. E. 575.

An appeal lies to the court of appeals from an order amending an order confirming the report of a referee on a receiver's accounting on a voluntary dissolution of a corporation and directing distribution to the creditors, by substituting one name for another as the party entitled to the dividends, as such order is a final order in a special proceeding.

Matter of Hulbert Bros. & Co., 160 N. Y. 9; 54 N. E. 571.

Likewise, an appeal lies to the court of appeals from an order of the appellate division modifying and affirming an order confirming the report of a referee, allowing the account of an assignee for creditors, adjusting the claims of creditors and directing payment thereof, releasing the assignee from liability for all matters included in the account and releasing his sureties to that extent, upon the ground that such order is a final order in a special proceeding, although the estate was not then ready for distribution.

Matter of Talmage, 160 N. Y. 512; 55 N. E. 276.

The court of appeals has jurisdiction to review an order of the appellate division affirming an order granting a property owner's application to vacate an assessment for a sewer construction, where such order relieves the owner from all liability on account of the assessment, as the order is a final order in a special proceeding.

Matter of Munn, 165 N. Y. 149; 58 N. E. 881.

An appeal lies to the court of appeals from an order vacating a satisfaction of judgment and authorizing the judgment creditor's attorney to enforce the judgment to the extent of his lien, as such order is not one in the action, but in a special proceeding.

Peri v. N. Y. C. & H. R. R. Co., 152 N. Y. 521; 26 Civ. Pro. 279; 46 N. E. 849.

The reversal by the appellate division of the trial court's judgment in condemnation proceedings and the dismissal of those proceedings, is a final judgment from which an appeal lies to the court of appeals.

Village of Champlain v. McCrea, 165 N. Y. 264; 59 N. E. 83.

A judgment is not appealable to the court of appeals which adjudges that certain of the defendants are indebted to an estate in a certain sum and directs that judgment be docketed therefor, appoints a receiver to collect such amount, and provides that all parties to the action interested in the estate may apply for judgment upon the report of the receiver and upon fur

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

ther proof, as such judgment is interlocutory in its nature, and therefore not reviewable by the court of appeals.

Anderson v. Daley, 159 N. Y. 146; 53 N. E. 753; 29 Civ. Pro. 257.

3. Mandumus.

An order denying a motion for a mandamus is not appealable to the court of appeals where the court below had discretionary power to refuse it. People of Board of Education of New York, 158 N. Y. 125; 52 N. E. 722. An appeal will not lie from an order of the appellate division affirming an order refusing a mandamus, where the latter order did not state the ground of refusal and the facts justified a refusal as a matter of discretion, although the affirmance was expresly based on the questions of law involved.

Matter of Hart, 159 N. Y. 278; 54 N. E. 44.

An appeal does not lie to the court of appeals from an order of the appellate division reversing an order directing a peremptory writ of mandamus upon a verdict rendered upon the issues raised by the return to an alternative writ, and granting a new trial, when it does not appear from the record that the reversal was not based upon the ground that the verdict was against the weight of evidence.

People v. Clausen, 163 N. Y. 523; 57 N. E. 739.

An order is appealable to the court of appeals which finally determines a proceeding by mandamus, under § 114 of the election law, for the recount of ballots objected to as marked for identification or rejected as void, and presenting a question of law for review, as an order finally determining a special proceeding.

People v. Board of Canvassers of Richmond County, 156 N. Y. 36; 50 N. E.

425.

4. Certiorari.

An appeal lies to the court of appeals from an order dismissing a writ of certiorari for want of jurisdiction.

People v. Board of Supervisors of Queens County, 153 N. Y. 370; 47 N. E. 790.

So an order quashing a writ of certiorari on the ground that the relator had no power or authority to prosecute it is not a discretionary order, and is appealable to the court of appeals.

People v. Campbell, 152 N. Y. 51; 46 N. E. 176.

An order is not appealable to the court of appeals which reversed an or der quashing a writ of certiorari, reinstated the writ and remanded the proceeding to the special term for determination, as such order cannot be deemed an order finally determining a special proceeding.

People v. Barker, 155 N. Y. 308; 49 N. E. 775.

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

d. Leave of court.

The appellate division cannot allow an appeal upon questions of fact passed upon by it, as its power in that respect is limited to questions of law.

Matter of Westerfield, 163 N. Y. 209; 57 N. E. 403.

No leave to appeal will be granted when a cause was determined by the appellate division on a question of fact.

Village of Bronxville v. N. Y. Westchester, etc. Co. 46 App. Div. 627; 95 St. Rep. 719; 61 Supp. 719.

The fact that the appellate division has granted permission to appeal to the court of appeals does not require the latter to adopt a rule in determining the questions thus brought before it different from that enforced in ordinary cases where no such allowance is necessary, and if the appeal is from an order not reviewable it must be dismised notwithstanding its allowance. Caponigri v. Altieri, 164 N. Y. 476; 58 N. E. 667.

The fact that the appellate division did not formulate the questions of law to be reviewed will not prevent the court of appeals from hearing the appeal when the same was granted under § 191 of the Code of Civil Procedure, but in the case of appeals, permitted under § 190, the appellate division must formulate the questions of law in order that they may be reviewed. Young v. Fox, 155 N. Y. 615; 50 N. E. 279; 27 Civ. Pro. 253; 5 Ann. Cas. 189.

In a case where leave to appeal is necessary, the fact that an order is made by the appellate division granting leave to appeal, no notice of appeal being served thereunder, will not render effective the prior unauthorized service of a notice of appeal.

Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. Co., 160 N. Y. 1; 54 N. E. 575.

Steamship Richmond Hill Co. v. Seager, 160 N. Y. 312; 54 N. E. 574; 7 Ann. Cas. 125.

And such appeal is not validated by an order of the appellate division allowing an appeal nunc pro tunc.

Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. Co. 160 N. Y. 1; 54 N. E. 575.

Appellate Division.

[Oct.

BURNHAM v. DENIKE et al.

[54 App. Div. 132; 100 St. Rep. 396; 66 Supp. 396.]

(Supreme Court, Appellate Division, Second Department. October 26. 1900.)

1. JUDGMENT-DECISION-SUFFICIENCY.

Code Civ. Pro. § 1022, provides that the decision of the court may state separately the facts found and the conclusions of law, or may state the grounds on which the issues have been decided, and direct entry of judgment, and that where costs are in the discretion of the court the decision must award or deny costs, and, if awarded, must state to whom. Held, that where the court in partition, filed a memorandum decision, “Final judgment may be granted as against the plaintiff, with costs," and final judgment dismissing the complaint, with costs, was entered thereon prior to the filing of formal findings of fact and conclusions of law and the entry of the interlocutory judgment adjudging partition between the defendants according to their rights, the judg ment of dismissal was premature, and, being without findings to support it, must be reversed.*

2. APPEAL JUDGMENT-INSUFFICIENT FINDINGS-REVERSAL-NEW TRIAL. Where a final judgment is reversed for lack of a sufficient decision to sup port it, and the case cannot be remitted to the trial court for entry of a proper decision, because the trial judge is no longer sitting in that department, there must be a new trial.

Appeal from trial term.

Action by Elizabeth W. Burnham against Charles W. Denike and others for partition. From a judgment dismissing the complaint, with costs, after trial by the court, plaintiff appeals. Reversed.

*For note on "Form of Decision of Court, or Report of Referee, after Trial of Issues of Fact," see 7 Ann. Cas. 497-501.