Low v. Bankers' Trust Co.
| Decision Date | 02 October 1934 |
| Parties | LOW et al. v. BANKERS' TRUST CO. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
On motion by Francis L. Hine, 2d, an infant of the age of 14 years, and Sibyl Young Hine, an infant under the age of 14 years, by Sibyl Y. Hine, their guardian ad litem, for leave to appeal to Court of Appeals from a judgment rendered by Appellate Division (241 App. Div. 731, 270 N. Y. S. 917), which affirmed judgment of Supreme Court, Special Term (146 Misc. 480, 261 N. Y. S. 474), in a case where Ethelbert Ide Low and others, as executors of and trustees under the last will and testament of Lyman N. Hine, deceased, were plaintiffs-respondents, and Bankers' Trust Company, as successor trustee under deed of trust made by Francis L. Hine under date of March 13, 1914, and movants and others were defendants-respondents.
Motion denied.Leonard P. Moore, George W. Whiteside, and David S. Hecht, all of New York City, for the motion.
David Ferguson, Windsor B. Putnam, Jerome Heffer, J. Adam Murphy, and John A. Mullen, all of New York City, opposed.
The court has no power to grant an application for leave to appeal unless such application is made within thirty days after notice of entry of the order of the Appellate Division refusing leave to appeal, except that, ‘if the court be in recess during all or part of such period, an application may be made upon notice served within such period to be heard after the expiration thereof, if noticed for a day not later than ten days after the court shall have re-convened.’ Civil Practice Act, § 591. An application is not made to the court until brought before the court upon proper notice. Regardless of the date when notice is served that application will be made to the court, the application is to late unless noticed for hearing within thirty days after service of notice of entry of the order of the Appellate Division, or, in a proper case, for a day not later than ten days after the court shall have reconvened. Metropolitan Casualty Ins. Co. of New York v. Public Nat. Bank & Trust Co. of New York, 262 N. Y. 614, 188 N. E. 89. Since the application in this case is made too late, the court does not now consider whether the judgment is final as to defendants other than the trustee.
Motion for leave to appeal denied, with $10 costs and necessary printing disbursements.
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