Knudsen v. New Dorp Coal Corp.

Full title: BESSIE A. KNUDSEN et al., Respondents, v. NEW DORP COAL CORP., Appellant

Court: Court of Appeals of the State of New York

Date published: Nov 2, 1967

20 N.Y.2d 875 (N.Y. 1967)

285 N.Y.S.2d 618

232 N.E.2d 649

Opinion

Submitted September 18, 1967

Decided November 2, 1967

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EDWARD G. BAKER, J.

Solomon R. Agar for motion.

William F. Larkin opposed.

Per Curiam.

Plaintiffs-respondents move to dismiss an appeal taken as of right pursuant to CPLR 5601 (subd. [d]) by the defendant-appellant on the ground that the appeal is untimely. The notice of appeal, although inartfully drawn, is timely (CPLR 5512, subd. [a]).

We note, however, that the defendant has appealed to both the Appellate Division and to this court from the final judgment of the Supreme Court, Richmond County, entered subsequent to a prior appeal to the Appellate Division (CPLR 5601, subd. [d]). Such dual review was not permitted under section 590 of the Civil Practice Act ( O'Boyle v. Brenner, 301 N.Y. 685; Bertini v. Murray, 289 N.Y. 352; see, also, 7 Weinstein-Korn-Miller, New York Civ. Prac., par. 5601.26). Since no change was intended or effected by the recodification (7 Weinstein-Korn-Miller, supra, pars. 5601.24, 5601.26), dual review should not be permitted under the CPLR, except in the unusual circumstances presented in Defler Corp. v. Kleeman ( 18 N.Y.2d 797) where it was necessary to preserve equality of remedy to each of multiple appellants. To permit generally simultaneous appeals to two courts would offend against the constitutional requirement of finality and encourage piecemeal review where all of the same questions are designedly left open on a single appeal. The motion to dismiss should be granted and the appeal dismissed, with costs, unless within 10 days the appellant serves upon the respondents a notice that it has abandoned its appeal to the Appellate Division and thereafter stipulates for the withdrawal of that appeal, without costs.

Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL concur.

Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless within 10 days appellant serves upon respondents a notice that it has abandoned its appeal to the Appellate Division and thereafter stipulates for the withdrawal of that appeal, without costs.