Los Angeles Investment Securities Corp. v. Joslyn

258 A.D. 1018, 16 N.Y.S.2d 875, 1940 N.Y. App. Div. LEXIS 8659

Opinion

Motion to resettle earlier decision [ante, p. 762; Id. p. 821; Id. p. 828] granted, by certifying the following question:

“ Did the judgment herein entered in Albany county clerk’s office December 20th, 1935 (158 Misc. 164), the affirmance thereof by this court’s judgment entered in said clerk’s office April 29, 1938 (254 App. Div. 711), the affirmance of this court’s judgment by the Court of Appeals on January 4, 1939 (279 N. Y. 734), and denial by the Court of Appeals on February 28, 1939, of the motion for reargument of the appeal thereto (280 N. Y. 570) preclude the Special Term from granting the order herein entered in Albany county clerk’s office April 12th, 1939? ”

Crapser, Bliss, Heffernan and Foster, JJ., concur; Hill, P. J., dissents. Although it is not too clear I will agree that under the decision of the Court of Appeals in connection with the motion to dismiss the appeal herein we should certify a question. [See 282 N. Y. 592.] The question certified was proposed by the appellant, and an answer thereto will not determine the question involved in the litigation. We decided (ante, p. 762) that the Special Term was in error in determining a question of fact, not that it was precluded from considering and acting upon a motion for a new trial. On the argument in this court (ante, p. 762) it was not asserted that the Special Term order was not appealable.