Lynch v. Sauer

16 Misc. 362, 38 N.Y.S. 1, 25 N.Y. Civ. Proc. R. 286, 74 N.Y. St. Rep. 369

Opinion

Per Curiam.

The practice in regard to granting leave to appeal to the Appellate Division from judgments and orders of this term must be assimilated to that formerly prevailing in the Court of Common Pleas on like motions for leave to appeal to the Court of Appeals in actions commenced in the City and District Courts. By such practice leave would he granted only:

(1) Where the determination involved great interests or settled a principle of law affecting, the decision of numerous other cases. Jackson v. Purchase, 1 Hilt. 351. And see Brand v. Godwin, 15 Daly, 469; or

(2) Where the decision- of the court was in direct conflict with one rendered by a General Term of this district. Clapp v. Graves, 2 Hilt. 243.

(3) Where the questions of law fall within one or other of the following classes: '

That they involve the construction of a public statute; that they are of public importance, or affect a large public interest; or that the principles involved are • of importance- to others than the parties litigating; and in respect to any of these classes of cases the court must be satisfied that there is fair and reasonable ground to doubt the correctness of the decision sought to be reviewed. Butterfield v. Radde, 38 N. Y. Super. Ct. 44.

The provision of section 1344 of the. Code, allowing appeals from this term to the Appellate Division, like that previously contained in section 191, permitting appeals to the Court of Appeals, is permissive only, bears the same interpretation and requires like regulation.

■ A practice so long tried and respected alike by bench and bar is the safest test of judicial discretion to be adopted under existing conditions. We have, therefore, concluded to adhere to it for future guidance. • j

Leave will not be granted where the subject-matter involved is trifling in amount, - and the delay would work a hardship on the respondent (Ahern v. Nat. S. S. Co., 11 Abb. [N. S.], 356), nor where the principle involved is -not of sufficient importance to justify the application. Woodward v. Bugsbee, 2 Hun, 683. A novel question of evidence does not present such a case. Id., 683, 128.

As the application is not within any of the rules with the modifications stated, it must be denied, with $10 costs.

■Present: Daly, P. J.,. Me Adam and Bisohoff, JJ.

Motion, denied, with $10 costs.