Majority
p. 369Lynch v. Sauer. (Supreme Court, Appellate Term, First Dept., Filed March 27, 1896.)
Headnote
1. Appeal—Leave to appeal.Leave to appeal to the appellate division of the supreme court from the appellate term for hearing appeals from the district and city courts will be granted only (1) where the determination involves great interests, or settles a principle of law affecting the decision of numerous other occasions; or (2) where the decision of the court is in direct conflict with one rendered by a general term of the district.
S, Same.
Such leave will not be granted where the subject-matter involved is trifling in amount, and the delay will work a hardship on the respondent, nor where the principle involved is not of sufficient importance to justify the application.
Motion for leave to appeal to appellate division under rule 7 of such division.
B. Metzger and G. M. Curtis, for the motion; Anderson, Howland & Murray, opposed.
The practice in regard to granting leave to appeal to the appellate division from judgments and orders of this Term must be assimilated to that formerly prevailing in the court of common pleas on like motions for leave to appeal to the court of appeals in actions commenced in the city and district courts. By such practice leave would be granted only (1) where the determination involved great interests, or settled a principle of law affecting the decision of numerous other cases (Jackson v. Purchase, 1 Hilt. 357: and see Brand v. Godwin, 15 Daly, at page "
p. 370
469; 29 St. Rep. 143 ); or (2) where the decision of the court waa in direct conflict with one rendered by a general term of this district (Clapp v. Graves, 2 Hilt. 243). The provision of section 1344 of the Code, allowing appeals from this term to the appellate division, like that previously contained in section 191 permitting appeals to the court of appeals, is permissive only, bear? the same interpretation, and requires like regulation. A practice so long tried, and respected alike by bench and bar, is the safest test of judicial discretion to be adopted under existing conditions. We have therefore concluded to adhere to it for future guidance. Leave will not be granted where the subject-matter involved is trifling in amount, and the delay would work a hardship on the respondent (Ahern v. Steamship Co., 11 Abb. Pr. [N. S.] 356), nor where the principle involved is not of sufficient importance to justify the application. Woodward v. Bugsbee, 2 Hun, 683 . A novel question of evidence does not present such a case. Id. 128, 683.
As the application is not within any of the rules with the modifications stated, it must be denied, with $10 costs.
Cases cited
- Jackson v. Purchase 1 Hilt. 357 p. 369
- Clapp v. Graves 2 Hilt. 243 p. 370