Ward v. Edesheimer — 45 N.Y. St. Rep. 283

Majority

p. 283

Edward E. Ward, Resp’t, v. Michael Edesheimer et al., App’lts.

(New York Common Pleas, General Term,

Filed March 7, 1892.)

Headnote

Appeal—Leave to go to.the court of appeals.

Leave to go to the court of appeals will not be granted for the sole purpose of enabling counsel to attempt to obtain a modification of a decision of that court decisive of the matter which has been followed by the courts for many years.

Motion for leave to go to the court of appeals.

Benno Loewy, for the motion ; C. A. Marl, opposed.

This motion is based on a novel ground. It is conceded that Gardner v. Keteltas, 3 Hill, 330 , is decisive of the case, yet counsel desires to go to the court of appeals on the question hoping to get some modification of that decision. But we are referred to no authority as a foundation for such hope, nor has our attention been called to any principle of law which could be invoked as the basis for such an experiment. The case cited was argued by Hen eral Anthon and Mr. Charles O’Connor, and decided by the old supreme court of the state, Chief Justice Nelson writing the opinion, and the principle there announced has been followed ever since. See Ins. Co. v. Scott, 2 Hilt., 552; Meeks v. Bowerman, 1 Daly, 100 ; McKinney v. Holt, 8 Hun, 339 ; Crooked Lake Nav. Co. v. Keuka Co., 37 id., 14; Gilhooley v. Washington, 4 N. Y., 217 ; Johnson v. Oppenheim, 34 N. Y. Super., 416; affirmed, 55 N. Y., 280 ; Rotter v. Goerlitz, 34 St. Rep., 1001 .

The motion must therefore be denied, with ten dollars costs.

Bookstayer, Bischoff and Pryor, JJ., concur.