Finelite v. Finelite — 41 N.Y. St. Rep. 158

Majority

p. 158

Lena Finelite, App’lt, v Alexander Finelite, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

Motions and obdebs—Relief fbom tebms imposed.

The only way in which a party can be relieved from terms imposed as a condition of granting a favor is by appeal to the general term, or by application to the same justice who granted the order. An application to another justice for such relief is in the nature of an appeal from one justice to another, and is improper.

Appeal from order denying motion to be relieved from the terms contained in a previous order.

G. W. Stephens, for app’lt; Abram Kling, for resp’t

Although we are of opinion that the terms imposed by the court upon the making of the original order were exceedingly stringent, yet we do not see how an appeal from the terms of the order, or any portion of them, could be made to another special term, which seems to have been the nature of the motion which resulted in the order appealed from. The only way in which a party could be relieved from the terms imposed as a condition of the granting of a favor asked for is by appeal to the general term, or by application to the same justice who held the court at the time the order was made. There is no such practice as allows an appeal from one special term to another upon any question which has been determined by either.

We think, therefore, that as this motion was simply such an appeal it was properly denied and the order appealed from should be affirmed, but under the circumstances without costs.

Ingraham and Daniels, JJ., concur.