Carlisle v. Barnes

• Decision Date: 12 December 1905
• Citation: 76 N.E. 27,183 N.Y. 272
• Parties: CARLISLE v. BARNES.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 272

76 N.E. 27

CARLISLE

v.BARNES.

Court of Appeals of New York.

Dec. 12, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John G. Carlisle against Reon Barnes. Motion to set aside an order granted by a judge of the Court of Appeals allowing an appeal to this court from a judgment of the Appellate Division (92 N. Y. Supp. 917,102 App. Div. 573), affirming a judgment in favor of plaintiff entered on a verdict and an order denying a new trial. Granted.

See 90 N. Y. Supp. 810.

Austen G. Fox, William Edmond Curtis, and Henry M. Ward, for the motion.

Charles F. Brown and F. H. Van Vechten, opposed.

PER CURIAM.

In the first instance an application for leave to appeal to this court was made to the Chief Judge, who denied the same. Thereafter the appellant applied to that judge for leave to renew the application to another judge of the court. This was granted on condition that the appellant give notice to the respondent of such application and that he be accorded a hearing thereon. Subsequently an application was made ex parte to a judge of the court and the appeal allowed. This motion is to set aside the order granting such allowance.

We are of opinion that section 191 of the Code of Civil Procedure does not contemplate nor authorize a repetition of such an application, after its denial by one judge of the court, to the other judges of the court in succession until the list of judges has been exhausted. An appellant may, in the first instance, select any judge to whom to make the application; but, having made his election, he is concluded by the decision made by the judge to whom the application is made, at least in the absence of leave given by that judge to renew the motion before another judge. It may be that section 776 of the Code, requiring that a subsequent application in reference to the same matter be made only to the same judge who heard the original application, or to the court, is not applicable to this case; for until the appeal is allowed the case is not in this court. Nevertheless, the provisions of the section, as well as those of section 529 of the Code of Criminal Procedure, clearly indicate the legislative policy that the disposition of applications made to the discretion of one judge, and denied, should not thereafter be the subject of review by another judge. A contrary rule as to allowance of appeals would create confusion in practice and would impose great and unnecessary labor...