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Langan v. First Trust & Deposit Co.

296 N.Y. 60 Court N.Y. Decision date 1946-11-14 English

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p. 60
George A. Langan, as Trustee of Onondaga Litholite Company, Bankrupt, Respondent, v. First Trust & Deposit Company et al., Appellants, et al., Defendants.
Argued October 2, 1946;
decided November 14, 1946.
p. 61
H. Duane Bruce for First Trust & Deposit Company and others, appellants.
Section 603 of the Civil Practice Act imposes no limitations on the Court of Appeals in reviewing the order appealed from.
Lawson Barnes for Domark Corporation, appellant.
Victor Levine for respondent.
On the appeal taken by permission of the Appellate Division on a certified question the Court of Appeals must presume that all questions of fact were determined by the Appellate Division in favor of the respondent. (Civ. Prac. Act, § 603.)

Neither in the order appealed from nor in the order granting leave to appeal to this court is there any statement by the Appellate Division that its decision was based solely on the question of law in the case and was not also the result of an exercise of discretion. In such circumstances, section 603 of the Civil Practice Act requires us to presume that the contrary is the fact. The appeals must therefore be dismissed, without costs on the ground that the question of law certified is not decisive of the correctness of the order appealed from (Civ. Prac. Act, § 589, subd. 3, cl. [b] Braunworth v. Braunworth, 285 N. Y. 151 ).

The appeals should be dismissed, without costs.

Loughran, Ch. J., Conway, Desmond, Thaoher, Dye and Fuld, JJ., concur; Lewis, J., taking no part.

Appeals dismissed. [See 296 N. Y. 834 .]

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