Low v. Bankers Trust Co.

192 N.E. 406, 265 N.Y. 264, 1934 N.Y. LEXIS 1024

• Court: New York Court of Appeals
• Decided: October 2, 1934
• Status: Published

Opinion

Per Curiam.

The court has no power to grant an application for leave to appeal unless such application is made within thirty days after notice of entry of the order of the Appellate Division refusing leave to appeal, except that “ if the court be in recess during all or part of such period, an application may be made upon notice served within such period to be heard after the expiration thereof, if noticed for a day not later than ten days after the court shall have re-convened.” (Civ. Prac. Act, § 591.) An application is not made to the court until brought before the court upon proper notice. Regardless of the date when notice is served that application will be made to the court, the application is too late unless noticed for hearing within thirty days after service of notice of entry of the order of the Appellate Division, or, in a proper case, for a day not later than ten days after the court shall have re-convened. (Metropolitan Casualty Ins. Co., v. Public Nat. Bank & Trust Co., 262 N. Y. 614.) Since the application in this case is made too late, the court does not now consider whether the judgment is final as to defendants other than the trustee.

Motion for leave to appeal denied, with ten dollars costs and necessary printing disbursements.