McGee v. Board of Education

19 A.D.2d 526, 240 N.Y.S.2d 242, 1963 N.Y. App. Div. LEXIS 3735

Opinion

Motion by plaintiff-respondent for leave to appeal this court’s order reversing the judgment, vacating the verdict, and dismissing the complaint, denied, with $10 costs to defendant-appellant. Plaintiff appealed this court’s order to the Court of Appeals, purportedly as of right. Judgment on the order was later entered, but no appeal was taken from it, and the limitation period expired. The appeal from the order was dismissed, as the order did not finally determine the action within the meaning of the Constitution. Now plaintiff seeks permission to appeal the order. Only the judgment entered on the order, and not the order itself, is appealable, either as a matter of right or with permission. Plaintiff’s reliance on section 592 (subd. 5, par. [b], cl. [i]) of the Civil Practice Act is not well-founded. While that section provides for an application for permission to appeal following dismissal of an appeal taken as of right, it requires that the court be otherwise authorized to grant permission to appeal. (Civ. Prae. Act, § 591; Shemm v. City of New York, 7 N Y 2d 971; Cohen and Karger, Powers of the New York Court of Appeals [rev. ed.], p. 112; but see, CPLR, § 5512, eff. Sept. 1, 1963.) Concur — Breitel, J. P., Rabin, Eager and Steuer, JJ.