Appellate Division of the Supreme Court of New York, 1920

Zinke v. Hipkins

Appellate Division of the Supreme Court of New York · Decided November 5, 1920 · Putnam

193 A.D. 498; 184 N.Y.S. 802; 1920 N.Y. App. Div. LEXIS 5581

Counsel

Robert E. McLear, for the motion., Alexander Holtzoff [Paul Windels with him on the brief], opposed.

Opinion of the Court

Putnam, J.:

Where a justice who sat in an appeal here is reported as “ not voting,” the judgment of the others is not unanimous. (Wangner v. Grimm, 169 N. Y. 421, 427.) The test now of the right to appeal to the Court of Appeals is where one or more justices of this court “ dissents from the decision.” (Code Civ. Proc. § 190, subd. 1, as amd. by Laws of 1917, chap. 290.) As there was no actual dissent to our judgment of affirmance, therefore, in correction of our order of October eighth, leave to appeal -to' the Court of Appeals is hereby granted.

Jenks, P. J., Rich, Kelly and Jaycox, JJ., concur.

Motion granted.

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