Delaney v. Valentine — 42 N.Y.S. 335

Majority

p. 335

DELANEY v. VALENTINE et al. (three cases).

(Supreme Court, Appellate Division, Third Department.

December 8, 1896.)

Headnote

Appeal—Allowing Appeal to Court op Appeals.

An appeal will be allowed to the court of appeals where the opinion affirming the judgment was unanimous only out of deference to the decision of the general term on a prior appeal.

Application by Thomas B. Valentine and others for leave to appeal to the court of appeals. Granted.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Walter P. Butler (Edgar T. Brackett, of counsel), for appellants.

W. A. Pierson (A. W. Shepherd, of counsel), for respondent.

These cases were heard and decided by the late general term of the Third department, and the trials had and judgments rendered from which these appeals were taken were had and rendered pursuant to that decision. The decisions rendered in this court upon the appeals here were arrived at largely upon and in deference to the decisions of said general term, and for the purpose of the orderly administration of justice, except for which reason this court would not have been unanimous in its decision; so that these cases were practically decided before the enactment of the statute which makes this court the court of last resort in this class of cases. For these reasons, we think, therefore, these cases do not come within the ordinary rules applicable to applications for leave to appeal to the court of appeals; and the applications are therefore granted, and certificates ordered, pursuant to section 191 of the Code of Civil Procedure. All concur, except PUTNAM, J., not acting.