Harrison v. Weir

68 A.D. 25, 73 N.Y.S. 1119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1902
• Status: Published

Opinion

Per Curiam:

Section 1344 of the Code provides that in case an appeal is heard by a justice or justices of the Supreme Court, as hereinbefore provided, the justice or justices by whom such appeal was determined may allow an appeal to be taken to such Appellate Division from such determination. This provision clearly requires that the justices who .heard the appeal, as such justices, may allow an appeal to be taken to the- Appellate Division from such determination. .This necessarily requires that the justices should act as such justices and notas a court; and the order should be signed precisely the same as any order which is made out of court. Of course, under the provisions of the law, a majority of the justices, upon application to the"whole, may allow an appeal. The order in this case does not conform to this provision. The allowance of the appeal is not signed by the justices who heard the appeal, or any of them as such; and 'consequently does not comply with the rule. .

The motion to dismiss the appeal will not be granted, but an opportunity will be given to the appellant to perfect his papers.

Present — Van Brunt, P. J., Patterson, O’Brien and Laughiin, JJ. ;

Motion denied.