Jaeger v. Koenig

67 A.D. 552

Opinion

McLaughlin, J.:

Appeals can only be taken from determinations of the Appellate Term to the Appellate Division by permission of the “ justices by whom such appeal was determined.” (Code Civ. Proc. § 1344.) In the present case such permission was not obtained, and, therefore, this court is not authorized to entertain jurisdiction of the appeal. It is true, permission was obtained from other justices sitting at the Appellate Term, but this does not comply with the section of the Code referred to. Permission must be obtained from the justices by whom such appeal was determined, and not from others. The reason of this provision is manifest. The justices who made the decision from which an appeal is desired to be taken are familiar with the facts and the legal questions involved, and for that reason can intelligently determine whether the same are of sufficient importance to justify another court in passing upon them.

It follows, therefore, that inasmuch as this court has no authority to hear the appeal, the cause must be stricken from the calendar.

Tan Brunt, P. J., Ingraham and Laughlin, JJ., concurred.

Cause stricken from the calendar.