James v. Powell
| Decision Date | 20 November 1968 |
| Parties | , 243 N.E.2d 746 Esther JAMES, Respondent, v. Adam Clayton POWELL, Jr., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from order of Supreme Court, Appellate Division, First Department, 30, A.D.2d 340, 292 N.Y.S.2d 135.
The Supreme Court, Special Term, New York County, Arthur Markewich, J., entered an ex parte order November 28, 1966 directing commitment of defendant for criminal contempt for failure to comply with order of November 17, 1966, adjudging defendant to be in criminal contempt because of willful disobedience of two prior orders that directed defendant to appear for examinations in supplementary proceedings, directing that defendant be imprisoned and fined, directing him to surrender, and directing that if he failed to surrender an ex parte order might be issued for his apprehension. The Special Term entered an order November 30, 1966 denying a motion by defendant to vacate the ex parte order of November 28, 1966.
The notice of appeal of the defendant recited that the appeal was being taken from the order of November 28, 1966 pursuant to order of November 17, 1966.
The Appellate Division entered an order which, by a divided court, dismissed the appeal. The dismissal was on ground that an ex parte order was not appealable and that notice of appeal failed to bring up for review the order of November 17, 1966.
The defendant appealed to the Court of Appeals, contending that the Appellate Division committed reversible error in finding that notice of appeal failed to bring up for review the order of November 17, 1966, and that CPLR 5520, subd. c., could have been invoked to cure defect in notice of appeal, and that order of dismissal should be reversed and matter should be remanded for review of adjudication of contempt.
Order affirmed, without costs.
All concur.
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Scotti, Application of
...No appeal lies from an Ex parte order (James v. Powell, 30 A.D.2d 340, 341, 292 N.Y.S.2d 135, 136 (First Dept.), affd., 23 N.Y.2d 691, 296 N.Y.S.2d 139, 243 N.E.2d 746; Matter of Bean v. Stoddard, 207 App.Div. 276, 281, 201 N.Y.S. 827, 831 (Fourth Dept.), affd., 238 N.Y. 618, 144 N.E. 916; ......
- Kelly v. Cohoes Housing Authority
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Romano v. Boice
...lie from an order granted ex parte (CPLR 5701[a][2]; see, James v. Powell, 30 A.D.2d 340, 341, 292 N.Y.S.2d 135, affd. 23 N.Y.2d 691, 296 N.Y.S.2d 139, 243 N.E.2d 746). Plaintiff's contentions that he complied, at least in spirit, with the conditional order and that, in any event, based on ......