Summary
In Low v. Bankers Trust Co. (265 N.Y. 264) it was held that an application for leave to appeal to the Court of Appeals is too late unless noticed for hearing within thirty days after the service of notice of entry of the order of the Appellate Division refusing leave to appeal or, if the court be in recess, not later than ten days after it shall have reconvened.
Summary of this case from People v. BrennerOpinion
Submitted July 3, 1934
Decided October 2, 1934
Appeal from the Supreme Court, Appellate Division, First Department.
George W. Whiteside, Leonard P. Moore and David S. Hecht for motion.
David Ferguson, J. Adam Murphy, Windsor B. Putnam, John A. Mullen and Jerome Heffer 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." (Civ. Prac. 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 too 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 re-convened. ( Metropolitan Casualty Ins. Co., v. Public Nat. Bank Trust Co., 262 N.Y. 614.) 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 ten dollars costs and necessary printing disbursements.