Sloan v. Beard

125 A.D. 625, 110 N.Y.S. 1, 1908 N.Y. App. Div. LEXIS 2846

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1908
• Status: Published

Opinion

Hooker, J.:

As we read Ihe record, this is. an appeal from an order of the Special Term granting a motion where a. similar application had been made, substantially the same relief being demanded, and denied theretofore by a Special Term held by a justice of the Supreme Court other than the one sitting in the court which made the order now ajipealed from. In this case there has been virtually an appeal from one Special Term of the Supreme Court to another, with the result that the latter has reversed the former. This practice, which has grown altogether too common, cannot be too strongly condemned. The question is not new and there is no reason why the practice should not be understood.

“The practice of moving before one judge at Special Term to declare void the order or judgment of another .judge at Special Term is not sanctioned by any provision of the Code that I am aware of or by any controlling authority. It virtually amounts to an appeal from one Special Term to another Special Term for a review of the first order.” (Platt v. N. Y. & Sea Beach R. Co., 170 N. Y. 451, 458.)

If a review of the first order had been desired, it should have been had by an appeal to this court instead of to a co-ordinate Special Term. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.