Keller v. Cleary

Appellate Division of the Supreme Court of New York

Keller v. Cleary

70 N.Y.S. 899, 62 A.D. 609

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 1901

StatusPublished

Cited by2 cases

This text of 70 N.Y.S. 899 (Keller v. Cleary) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Keller v. Cleary, 70 N.Y.S. 899, 62 A.D. 609 (N.Y. Ct. App. 1901).

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Opinion

PER CURIAM.

The defect pointed out upon the former appeal, relative to service of the papers (56 App. Div. 466, 67 N. Y. Supp. 862), has now been remedied, and therefore this appeal is properly brought. The rule laid down in Sperling v. Boll, 26 App. Div. 64, 50 N. Y. Supp. 209, is not applicable. In that case two appeals were taken; the first being dismissed for failure to print and serve papers within the time prescribed by the rules of practice, and the second for the reason that no leave had been obtained to bring it, and it had not been reinstated. Here, however, the former appeal was a nullity, it appearing that this court was “without jurisdiction to entertain” it, wherefore it was dismissed, so that this is the first and only appeal that has been had in the proceeding.

Upon the merits, we concur in the conclusion reached by Mr. Justice INGRAHAM, as stated in his opinion upon the former appeal,—that, under the statute as applicable to the facts here appearing, the commissioner has no authority to prosecute this proceeding.

The order accordingly should be reversed, and the proceeding dismissed, without costs.

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PER CURIAM.

The defect pointed out upon the former appeal, relative to service of the papers (56 App. Div. 466, 67 N. Y. Supp. 862), has now been remedied, and therefore this appeal is properly brought. The rule laid down in Sperling v. Boll, 26 App. Div. 64, 50 N. Y. Supp. 209, is not applicable. In that case two appeals were taken; the first being dismissed for failure to print and serve papers within the time prescribed by the rules of practice, and the second for the reason that no leave had been obtained to bring it, and it had not been reinstated. Here, however, the former appeal was a nullity, it appearing that this court was “without jurisdiction to entertain” it, wherefore it was dismissed, so that this is the first and only appeal that has been had in the proceeding.

Upon the merits, we concur in the conclusion reached by Mr. Justice INGRAHAM, as stated in his opinion upon the former appeal,—that, under the statute as applicable to the facts here appearing, the commissioner has no authority to prosecute this proceeding.

The order accordingly should be reversed, and the proceeding dismissed, without costs.

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70 N.Y.S. 899, 62 A.D. 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-cleary-nyappdiv-1901.

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