Bradick v. Deetjen

New York Court of Appeals

Bradick v. Deetjen

122 N.E.2d 749, 307 N.Y. 863, 1954 N.Y. LEXIS 1559

CourtNew York Court of Appeals

DecidedOctober 22, 1954

StatusPublished

Cited by1 cases

This text of 122 N.E.2d 749 (Bradick v. Deetjen) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bradick v. Deetjen, 122 N.E.2d 749, 307 N.Y. 863, 1954 N.Y. LEXIS 1559 (N.Y. 1954).

Pincite

Opinion

Per Curiam.

The Justice at Special Term ruled, in the exercise of discretion (Rules Civ. Prac., rule 102), that decision on the merits of the question raised by defendants’ motion should be deferred until the trial. The Appellate Division, in affirming the order of Special Term and in granting leave to appeal to this court, failed to state that its decision was based solely on questions of law and was not in the exercise of the discretion conferred by rule 102. In such circumstances, section 603 of the Civil Practice Act requires us to presume that the Appellate Division did in fact deny the defendants ’ motion in the exercise of a permissible discretion (Mencher v. Chesley, 297 N. Y. 94, 102-103). It follows that the questions of law certified are not decisive of the correctness of the decision of the Appellate [865]*865Division and, therefore, that the appeal must be dismissed, with costs (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 382-383).

The appeal should be dismissed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fkoessel and Van Voorhis, JJ., concur.

Appeal dismissed.

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Per Curiam.

The Justice at Special Term ruled, in the exercise of discretion (Rules Civ. Prac., rule 102), that decision on the merits of the question raised by defendants’ motion should be deferred until the trial. The Appellate Division, in affirming the order of Special Term and in granting leave to appeal to this court, failed to state that its decision was based solely on questions of law and was not in the exercise of the discretion conferred by rule 102. In such circumstances, section 603 of the Civil Practice Act requires us to presume that the Appellate Division did in fact deny the defendants ’ motion in the exercise of a permissible discretion (Mencher v. Chesley, 297 N. Y. 94, 102-103). It follows that the questions of law certified are not decisive of the correctness of the decision of the Appellate [865]*865Division and, therefore, that the appeal must be dismissed, with costs (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 382-383).

The appeal should be dismissed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fkoessel and Van Voorhis, JJ., concur.

Appeal dismissed.

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Bluebook (online)

122 N.E.2d 749, 307 N.Y. 863, 1954 N.Y. LEXIS 1559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradick-v-deetjen-ny-1954.

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