Kessler v. Fligel

• Decision Date: 09 October 1934
• Citation: 265 N.Y. 289,192 N.E. 415
• Parties: KESSLER v. FLIGEL.
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 289

192 N.E. 415

KESSLER

v.FLIGEL.

Court of Appeals of New York.

Oct. 9, 1934.

On motion for reargument of motion to dismiss appeal.

Motion for reargument granted and motion to dismiss denied, and former order reversed.

For former opinion dismissing appeal, see 264 N. Y. 689, 191 N. E. 628.

Appeal from Supreme Court, Appellate Division, First Department.

Samuel M. Rivelson, of New York City, for the motion.

Lawrence Kovalsky, of New York City, opposed.

PER CURIAM.

While reliance has been placed upon Terwilliger v. Browning, King & Co., 207 N. Y. 479, 101 N. E. 463, as holding that applications to the Appellate Division for leave to appeal on certified questions must be made within thirty days after the order was rendered without regard to the service of the order or the notice of entry thereof, it appears that in Matter of Bean v. Stoddard, 238 N. Y. 552, 144 N. E. 888; Id., 238 N. Y. 581, 144 N. E. 900;Id., 238 N. Y. 618, 144 N. E. 916, the court, without reference to the Terwilliger Case, supra, held that the time within which such applications may be made begins to run from the date of service on the opposite party of a copy of the Appellate Division order with notice of entry thereof. The practice in applications for leave to appeal from the Appellate Division on certified questions, that is, from intermediate orders, is thus assimilated to the practice on applications for leave to appeal from final orders and final judgments.

Motion for reargument of motion to dismiss appeal granted, and motion to dismiss denied.