Claflin v. Flack — 37 N.Y. St. Rep. 509

Majority

p. 509

John Claflin et al., v. James A. Flack, Sheriff.

(New York Common Pleas, General Term,

Filed April 6, 1891.)

Headnote

Appeal—Leave to go to court of appeals.

Where an appeal from the city court of New York to the common pleas involves no new question of law, and the decision of the latter court is only an application of well settled principles, leave to appeal to the court of appeals should not be granted..

Motion for an allowance of an appeal to the court of appeals.

David Tim, for the motion; David Leventritt, contra.

Assuming that, although the remittitur has been filed in the court below and our judgment made a judgment of that court, we still have jurisdiction of the motion, we are of opinion, nevertheless, that it should not be granted.

The case involved no new question of law, and our decision was only an application of well settled principles.

The authority, Macullar v. McKinley, 99 N. Y., 353 , so strenuously urged by the appellant, was critically examined by us, and was found essentially distinguishable from the case at bar. Our decision in no way impugns the principle enunciated by the court of appeals.

p. 510

Although we adverted to the omission from the case of a statement that it contained all the evidence, and suggested the effect of such omission, the remark was obiter, and we proceeded to consider and determine the appeal upon the evidence as presented in the record before us. Ex industria we avoided to found our decision on the technical defect.

The other considerations pressed upon us are overborne by the equal hardships to the respondent, and by the public interest in. the end of the litigation.

Motion denied, with costs.

Daly, Oh. J., Bischoff and Pryor, JJ., concur.