People ex rel. Hoffman v. Board of Education

Majority

p. 86

The People ex rel. Anna M. Hoffman, Appellant, v. The Board of Education of the City of New York et al., Respondents.

Headnote

While after appeal to this court, in all matters pertaining to the appeal itself and to the proper hearing of, as well as all applications which by statute may be made to this court, it has jurisdiction, as to all other applications the case is to be regarded as still pending in the court of original jurisdiction, and such applications should he made to that court.

Where, therefore, after appeal to this court the appellant’s attorneys at her request substituted another in their place, held, that a motion for order directing the former attorneys to turn over the papers in the case to the substituted attorney was not properly made here, hut should have been made in the court below.

(Argued January 15, 1894;

decided January 23, 1894.)

This was a motion for an order directing the former attorneys of the relator to deliver to her present attorney certain qiapers.

p. 87

Henry Schmitt for motion.

Nelson J. Waterbury and Nelson J. Waterbury, Jr., opposed.

The relator retained attorneys in this proceeding, who appeared for her in the court below and who in her behalf appealed to this court from an adverse determination of the proceeding in that court. Subsequent to the appeal the relator’s attorneys, at her request', substituted another in their place. The attorney thus substituted, upon an affidavit that he had demanded from the former attorneys certain papers in the case which they had failed to deliver, has noticed a motion in this court for an order directing the former attorneys to deliver such papers to him. They have, in opposition to such motion, presented an affidavit in which one of them swears that he has in fact delivered to the relator personally all the material papers in the case which could be found in their possession, and that the only papers left are some unimportant ones, such as notices of argument and old stipulations to put over the case.

This would probably be a sufficient answer to the motion if it were properly here for us to decide. But upon an appeal to this court the record itself is not transmitted, and the case, for all general purposes, still remains in the court of original jurisdiction. A transcript only of the record is sent here. In all matters pertaining to the appeal itself, and to the proper hearing thereof, this court has jurisdiction, and also in regard to all applications which by statute may be made to this court after the taking of an appeal, but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court.

The motion is, therefore, denied, with ten dollars costs, with liberty to renew in the court below if relator should be so advised.

All concur.

Motion denied.