Flagg v. Moses

Headnote

Appeal — reversal by Appellate Division of judgment entered upon dismissal of complaint and grant of nexo trial — Appellate Division without poxoer to grant permission to appeal to Court of Appeals on certified questions.

Flagg v. Moses, 222 App. Div. 762 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 13, 1928, which denied for lack of power defendants’ motion for leave to appeal to the Court of Appeals from an order of said Appellate Division entered December 9, 1927, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The following question was certified: In the circumstances of this case has this court power to grant leave to the defendants to appeal from the

order of this court entered in this court on December 9, 1927, reversing a judgment for defendants after a trial in the Suffolk County Supreme Court before Mr. Justice' Callaghan and a jury, entered on May 18, 1927, and to certify to the Court of Appeals that the following questions of law have arisen, which, in the judgment of the court, should be reviewed by the Court of Appeals: “ 1. Was the plaintiffs’ complaint properly dismissed at the end of plaintiffs’ case? 2. Should the question whether the Long Island State Park Commission had funds measurably adequate for the appropriation of the premises described in the complaint have been submitted to the jury? 3. Should the question whether the»Long Island State Park Commission acted in good faith in arriving at a valuation of the premises described in the complaint have been submitted to the jury? 4. Was the Appellate Division warranted in reversing the judgment dismissing the complaint in order to permit a recovery of nominal damages? ”