BROWN v. SCHNEIDER, 26 N.Y.2d 839 (1970)

309 N.Y.S.2d 588, 258 N.E.2d 86

ARTHUR BROWN, Respondent, v. ELMER J. SCHNEIDER, Defendant, AMOS J. BROWN, Appellant.

Court of Appeals of the State of New York.Submitted February 16, 1970
Decided February 26, 1970

Page 840

Appeal from the Supreme Court, Tompkins County, HAROLD E. SIMPSON, J.

Manley H. Thaler for motion.

Edmund J. Hoffmann, Jr. opposed.

Motion dismissed, with $10 costs and necessary printing disbursements, in the following memorandum: The motion for leave to appeal should be dismissed, upon the ground that there is no direct appeal by leave of court from the order (denominated a judgment) sought to be appealed from (cf. CPLR 5602, subd. [a]). Moreover, an appeal as of right does not lie because there is involved no challenge of a statute on constitutional grounds, nor does the order (denominated a judgment) sought to be appealed from finally determine an action within the meaning of the Constitution (CPLR 5601, subd. [b], par. 2). If in fact there was an appeal perfected to the Appellate Division from the order of the Supreme Court denying the motion for a new trial (denominated a motion for a mistrial), then the Appellate Division had power, in the sense of jurisdiction over the litigant, to entertain the appeal (CPLR 5701, subd. [a], par. 2, cl. [iii]; see, also, 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5701.12). [See 25 N.Y.2d 903.]

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