Hilton Watch Co. v. Benrus Watch Co.

135 N.E.2d 31, 1 N.Y.2d 271, 152 N.Y.S.2d 269, 1956 N.Y. LEXIS 878

Opinion

Per Curiam.

A motion to serve a supplemental pleading alleging any new and additional cause of action is addressed to the discretion of the court (Civ. Prac. Act, § 245-a). There is no specification by the Appellate Division that its decision was based solely on a question of law as provided by section 603 of the Civil Practice Act. Consequently, we must presume that its decision was based on an exercise of discretion. Thus, there is no decisive question of law for us to review (Mencher v. Chesley, 297 N. Y. 94, 102-103; Long Park v. Trenton-New Brunswick Theatres Co., 299 N. Y. 718, 719-720; Stevenson v. News Syndicate Co., 302 N. Y. 81, 87; see Meenan v. Meenan, 1 N Y 2d 269, decided herewith).

The appeal should be dismissed, without costs, unless the appellant applies to the Appellate Division within 30 days for resettlement of the order granting permission to appeal in accordance with the provisions of section 603 of the Civil Practice Act, and unless thereafter such application is granted.

Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Appeal dismissed, etc.