Harrison v. Weir — 68 A.D. 25

Majority

p. 25

Roger T. Harrison, Respondent, v. Levi C. Weir, as President of the Adams Express Company, Appellant.

Headnote

AppecA—the allowance of, to the Appellate Division from the Appellate Term, must be signed by a majority of the justices as such and not by the court.

Under section 1344 of the Code of Civil Procedure, which provides that where an appeal is heard at the Appellate Term by a justice or justices of the Supreme Court, the justice or justices by whom such appeal was determined may allow an appeal to be taken to the Appellate Division from such determination, it is necessary that the justices should act as justices and not as a court, and that the order allowing the appeal should be signed precisely the same as any order which is made out of court.

A majority of justices, upon application to the whole, may allow an appeal.

p. 26

Motion by the plaintiff, Roger T. Harrison, to dismiss an appeal from the Appellate Term.of the Supreme Court in the above-entitled action, pending in the Appellate Division of the Supreme 0 Court, first department.

11. 11. Brown, for the motion.

B. R. Rogers, opposed.

Section 1344 of the Code provides that in case an appeal is heard by a justice or justices of the Supreme Court, as hereinbefore provided, the justice or justices by whom such appeal was determined may allow an appeal to be taken to such Appellate Division from such determination. This provision clearly requires that the justices who .heard the appeal, as such justices, may allow an appeal to be taken to the- Appellate Division from such determination. .This necessarily requires that the justices should act as such justices and notas a court; and the order should be signed precisely the same as any order which is made out of court. Of course, under the provisions of the law, a majority of the justices, upon application to the"whole, may allow an appeal. The order in this case does not conform to this provision. The allowance of the appeal is not signed by the justices who heard the appeal, or any of them as such; and 'consequently does not comply with the rule. .

The motion to dismiss the appeal will not be granted, but an opportunity will be given to the appellant to perfect his papers.

Present — Van Brunt, P. J., Patterson, O’Brien and Laughiin, JJ. ;

Motion denied.