Hyperlawhypertext legal database Saling v. German Savings Bank 28 N.Y. St. Rep. 880

← Cases

Saling v. German Savings Bank

28 N.Y. St. Rep. 880 Court N.Y.C.P. Decision date 1890-02-03 English

Delivered by Bookstaver, J.

Contents

Majority

p. 880
Henry Saling, Resp’t, v. The German Savings Bank of the City of New York, App’lt.[1]
(New York Common Pleas, General Term,
Filed February 3, 1890.)

Headnote

1. Appeal—Leave to go to couet op appeals.
The giving of a stipulation for judgment absolute in case of affirmance ■ by the general term precludes an appeal to the court of appeals.
2. Same.
Where the general term are not divided on the decision of the case, no principles of general interest are involved, and the court of appeals has definitely passed on the principal questions involved, leave will not be granted.
Motion for leave to appeal to the court of appeals.
Sanders, Wagner & Auersbach, for app’lt; M. Bayersdorfer, for resp’t.

This action was originally commenced in the ■city court and on the trial resulted in a dismissal of the complaint. An appeal was taken from the judgment of dismissal to the general term of that court and resulted in a 'reversal of the judgment and in ordering a new trial. From this order of the general term of that court an appeal was taken by the defendant to this court, and in such appeal the defendant stipulated as follows : “And the defendant and appellant hereby assents that if the said order of reversal so appealed from be affirmed, judgment .absolute shall be rendered against defendant and appellant. ” The .giving of such a stipulation we think precludes an appeal to the

p. 881
court of appeals. Gordon v. Hartman, 79 N. Y., 221 . But if this were not so, we think leave should not be given. The general term of this court unanimously affirmed the order granting a new trial. There is involved in the litigation no principle of general interest, and the court of last resort has definitely passed upon the liability of savings banks and their depositors in cases ■similar to the present. Appleby v. Erie County Savings Bank, 62 N. Y., 12 ; Allen v. Williamsburgh Savings Bank, 69 id., 314; Smith v. Brooklyn Savings Bank, 101 id., 58.

We therefore think the leave asked for should be denied, with costs.

Bischoff, J., concurs.