Filardo v. Foley Bros.

191 Misc. 671, 78 N.Y.S.2d 689, 1948 N.Y. Misc. LEXIS 2300

Opinion

Eder, J.

Motion is granted. The United States Attorney applies on behalf of the defendants for an order staying the execution of the judgment heretofore entered in this court pending an application to the United States Supreme Court for review, by certiorari, of a determination made in favor of plaintiff by the Court of Appeals of this State (297 N. Y. 217).

The point is raised, in opposition, that this court is not empowered to entertain the application and that such an application should be made to the Chief Judge of the Court of Appeals in the first instance, or to a Justice of the Supreme Court of the United States.

This premise would be correct were the case one where the mandate or remittitur has not gone down to the lower court. Where, however, as here, the remittitur of the Court of Appeals has been filed with the clerk of this court, the proper forum to which application for such relief should be made is the court in which the judgment was rendered and the motion is properly made in this court (U. S. Code, tit. 28, § 350; see Keyes v. United States Fidelity S Guar. Co., 44 F. Supp. 723; Oceania Steam Navigation Co. v. Watkins, 188 F. 909).

I do not see why a stay should be refused pending the decision of the Supreme Court on the application for a writ of certiorari. Settle order.