Opinion
April 15, 1910.
Herbert D. Mason and William L. Ransom, for the motion.
John R. Abney, opposed.
Present — INGRAHAM, P.J., LAUGHLIN, CLARKE, SCOTT and MILLER, JJ.
This application is made upon the ground that there is a question whether this case is within subdivision 2 of section 191 of the Code of Civil Procedure, so that in order to entitle the defendant to appeal to the Court of Appeals this court must certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. The defendant has offered to give a bond to pay the judgment if the judgment should be affirmed.
Whether or not this case is appealable without such a certificate is a question that should not be decided by this court, but is for the court to which the appeal is to be taken, and we express no opinion upon that question. We think, however, that questions of law are presented in this case which should be reviewed by the Court of Appeals; and the defendant having requested such a certificate, and entertaining the view that there are questions of law involved in this case which ought to be reviewed by the Court of Appeals, we think the application should be granted upon the defendant's complying with the stipulation as to an undertaking on appeal which he suggested, without, however, intimating any opinion as to whether or not such a certificate in this case is necessary.
Motion granted on condition that appellant give bond. Settle order on notice.