THE JURISDICTION OF THE COURT OF APPEALS The Constitutional Convention of 1894 was, confronted by three propositions to relieve the Court of Appeals an increase in the number of judges of the existing court, the creation of an auxiliary court, or the limitation of the jurisdiction of the court. The latter course was adopted. The jurisdiction of the court is defined by article 6, section 9, of the Constitution, which also authorized the legislature to further restrict its jurisdiction, subject to the limitation that the right of appeal shall not depend upon the amount involved. The jurisdiction prescribed by the Constitution is restated and somewhat further limited by the Code of Civil Procedure, sections 190, 191. The jurisdiction of the court is confined to a review of questions of law, except where the judgment is of death. Its jurisdiction to review questions of law is further limited by a prohibition against the review in any event of the unanimous decision of the Appellate Division of the question of law, formerly reviewable pursuant to section 1337 of the Code of Civil Procedure, that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court. Appeals may be taken as of right to the Court of Appeals for the review of questions of law from: 1. Final judgments in actions. 2. Final orders in special proceedings. 3. Orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them. Provisions of Constitution In none of these cases can the appeal be taken to the Court of Appeals if the action or proceeding was commenced in a court other than the Supreme Court, the Court of Claims, a County Court or a Surrogate's Court, unless the Appellate Division allows the appeal. Moreover, if the action is (1) to recover damages for a personal injury, (2) to recover damages for injuries resulting in death, (3) to set aside a judgment, sale, transfer, conveyance, assignment or written instrument as in fraud of the rights of creditors, (4) to recover wages, salary, or compensation for services, including expenses incidental thereto, or damages for breach of any contract therefor, (5) or in an action upon an individual bond or individual undertaking on appeal, a unanimous judgment of affirmance by the Appellate Division is not reviewable unless the Appellate Division certifies that a question of law is involved which in its opinion ought to be reviewed, or in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals. Non-final or interlocutory judgments or orders are not reviewable by the Court of Appeals in any event, whether the decision of the Appellate Division is unanimous or not, unless the Appellate Division certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, in which case the appeal brings up for review the question or questions so certified, and no other. Discretionary orders are, of course, not reviewable, whether final or otherwise. The provisions of the Constitution and Code are as follows: § 9. After the last day of December, one thousand eight hundred and ninety-five, the jurisdiction of the Court of Appeals, except where the judgment is of death, shall be limited to the review of questions of law. No Provisions of Code unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them. The Appellate Division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the Court of Appeals. The legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved. The provisions of this section shall not apply to orders made or judgments rendered by any General Term before the last day of December, one thousand eight hundred and ninety-five, but appeals therefrom may be taken under existing provisions of law. Code of Civil Procedure (Civ. Pro.) The § 190. The jurisdiction of the Court of Appeals in civil actions. Court of Appeals has exclusive jurisdiction to review upon appeal every actual determination made prior to the last day of December, eighteen hundred and ninety-five, at a General Term of the Supreme Court, or by either of the Superior City Courts, as then constituted, in all cases in which, under the provisions of law existing on said day, appeals might be taken to the Court of Appeals. From and after the last day of December, eighteen hundred and ninety-five, the jurisdiction of the Court of Appeals shall, in civil actions and proceedings, be confined to the review upon appeal of the actual determination made by the Appellate Division of the Supreme Court in either of the following cases, and no others: 1. Appeals may be taken as of right to said court, from judgments or orders finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them. 2. Appeals may also be taken from determinations of the Appellate Division of the Supreme Court in any department where the Appellate Division allows the same, and certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, in which case the appeal brings up for review the question or questions so certified, and no other; and the Court of Appeals shall certify to the Appellate Division its determination upon such questions. (Thus am. by L. 1895, ch. 946, in effect January 1, 1896.) Provisions of Code § 191. Limitations, exceptions and conditions. -- The jurisdiction con ferred by the last section is subject to the following limitations, exceptions and conditions: 1. No appeal shall be taken to said court, in any civil action or proceeding commenced in any court other than the Supreme Court, Court of Claims, County Court, or a Surrogate's Court unless the Appellate Division of the Supreme Court allows the appeal by an order made at the term which rendered the determination, or at the next term after judgment is entered thereupon, and shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. 2. No appeal shall be taken to said court from a judgment of affirmance hereafter rendered in an action to recover damages for a personal injury, or to recover damages for injuries resulting in death, or in an action to set aside a judgment, sale, transfer, conveyance, assignment or written instrument as in fraud of the rights of creditors, or in an action to recover wages, salary or compensation for services, including expenses incidental thereto, or damages for breach of any contract therefor, or in an action upon an individual bond or individual undertaking on appeal, when the decision of the Appellate Division of the Supreme Court is unanimous, unless such Appellate Division shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals. 3. The jurisdiction of the court is limited to a review of questions of law. 4. No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. (Thus am. by L. 1893, ch. 559, L. 1898, ch. 574, and L. 1900, ch. 592.) The issuing or execu § 2261. Effect of appeal limited in certain cases. tion of the warrant cannot be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. An appeal cannot be taken to the Court of Appeals, from a final determination of the Appellate Division of the Supreme Court, upon such an appeal, unless the latter court, by an order, made at the term of the Appellate Division where the final order is made, or the next term thereafter allows it to be taken. (Thus am. by L. 1895, ch. 946, in effect January 1, 1896.) This section relates to a summary proceeding to recover the possession of real property. As the proceeding is usually commenced in an inferior court, the right to appeal to the Court of Appeals is also limited by subdivision 1 of section 191 of the Code. Jurisdiction is statutory. -The right of appeal is not a natural or inherent right, but rests upon the statute alone, and may be taken away by the legislature, unless conferred by the organic law of the State. The juris Provisions of Code diction of the Court of Appeals is designated and created by law, and it has no other. Croveno v. Atlantic Ave. R. R. Co. (1896), 150 N. Y. 225, citing People ex rel. Grissler v. Fowler (1874), 55 id. 675; Hewlett v. Elmer (1886), 103 id. 156, 164. The Court of Appeals has no jurisdiction, unless it is conferred by statute. This applies to civil and criminal actions, and special proceedings of a criminal nature which are created by statute, and are partly civil and partly criminal in character. People ex rel. Commrs. of Charities v. Cullen (1897), 151 N. Y. 54. The provisions of article 6 of section 9 of the Constitution do not prohibit the legislature from enlarging the jurisdiction of the court, save only in those special cases which are expressly withdrawn from its review. People ex rel. Commrs. of Charities v. Cullen (1897), 153 N. Y. 629. The Court of Appeals has no jurisdiction to review an order which is not made in a civil or criminal action or proceeding. The jurisdiction of the court is solely statutory. Matter of Jones (1905), 181 N. Y. 389. Appeal by Public Service Commission. — The Public Service Commission is entitled to prosecute an appeal from an order of the Appellate Division which annulled its determination denying an application by a railroad company for permission to construct and operate an extension of its road. People ex rel. South Shore T. Co. v. Wilcox (1909), 196 N. Y. 112, affg. 133 App. Div. 556, 118 N. Y. Supp. 248. - Construction of section 190, subdivision 1. Section 190 refers only to final judgments in actions and final orders in special proceedings. It does not allow an appeal from an order in an action, even although it is one which ends the litigation. Van Arsdale v. King (1898), 155 N. Y. 325; Jewelers' Mer. Agency v. Rothschild (1898), id. 245. Appeals to the Court of Appeals may be taken as of right only from "judgments or orders finally determining actions or special proceedings" (excepting orders granting new trials on exceptions), which means, as have been authoritatively determined, (1) final judgments determining actions, and (2) final orders determining special proceedings on the merits. It is not enough that the action or special proceeding be ended by the judgment or order; it must be determined upon the merits. Van Nostrand v. Van Nostrand (1908), 125 App. Div. 718, 110 N. Y. Supp. 142. Orders appealable as of right. In the following cases, the orders therein were held to be final orders in special proceedings, and appealable as of right to the Court of Appeals: An order for distribution of surplus moneys in foreclosure is made in a special proceeding and an appeal therefrom may be taken to the Court of Appeals without permission. Velleman v. Rohrig (1908), 193 N. Y. 439, affg. 127 App. Div. 692, 111 N. Y. Supp. 636. |