Gallagher v. Perot

Headnote

Appeal — Appellate Division without jurisdiction to entertain appeal from final judgment after affirmance thereof by Court of Appeals upon direct appeal.

Gallagher v. Perot, 203 App. Div. 651 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, rendered December 1, 1922, which dismissed appeals from a final judgment.

The following question was certified: “ The Appellate Division, in this case having afiirmed an interlocutory judgment against the defendants, among other things, directing an accounting, and the Special Term, after such accounting, and on January 14, 1922, having entered final judgment, and the defendants having appealed from said final judgment directly to the Court of Appeals, pursuant to section 1336 of the Code of Civil Procedure (section 590 of the Civil Practice Act) and at or about the same time, having also appealed from said final judgment to the Appellate Division, and the said appeals having been duly argued in the Appellate Division and in the Court of Appeals, and on July 12, 1922, before the appeal to the Appellate Division from said final judgment had been determined, the Court of Appeals having handed down a decision affirming the said final judgment, and its remittitur having been duly filed and judgment duly entered, making the judgment of the said Court of Appeals the judgment of the Supreme Court, did the Appellate Division then or thereafter, under section 1350 of the Code of Civil Procedure (section 619 of the Civil Practice Act), have jurisdiction to entertain said appeals to this court from said final judgment, and to review the pro

ceedings upon which said final judgment was taken, or were said appeals properly dismissed by this court? ”