Curtin v. Metropolitan Street Railway Co.

The State Constitution (art. 6, § 5) provides that “ appeals from inferior and local courts now heard in the Court of. *587Common. Pleas * * *■ shall be heard in the Supreme Court in such manner and by such justice or justices ” as the Appellate Division shall direct. Similar language is found in section 1344 of the Code; and it is further provided that the “ justice or justices by whom such appeal was determined may allow an appeal to be taken ” to the Appellate Division. The name "Appellate Term is purely an arbitrary designation, apparently justified by the rules and regulations pertaining to such appeals, for'it is nowhere found in the Constitution or the statute.

The assignment of Justices Daly, McAdam and Bisehofi to hold the Appellate Term ceased December 31, 1897, and thereafter all power to hear appeals from the City Court and District Courts, or any applications in respect thereto, passed to Justices Beekman, Gildersleeve and Giegerich, who were duly assigned to hear such appeals during the year* 1898, as fully as if the official terms as Supreme Court justices of those previously designated had expired by lapse of time.

The words “ justice or justices ” in the constitutional and Code provisions are used in the same sense as are the words “ the General Term from whose decision or determination such an appeal shall be taken,” in section 11 of the former Code (as amended in 1874); and these last quoted were held to include the succeeding General Term, though composed of different justices. Sprague v. Western U. T. Co., 64 N. Y. 658.

The application for leave to appeal to the Appellate Division was, therefore, properly submitted to- Justices Beekman, Gilder-sleeve and Giegerich at the January (1898) Term, and cannot be entertained by their predecessors. Such submission was in strict conformity with- Rule YII of the Supreme Court rules regulating the hearing of appeals from the City Court and District Courts. This rule requires that the application for leave to appeal be made at the next term after the announcement of the decision, sought to be reviewed; which confirms the conclusion that the hearing must be before the justices having authority to hold said term.

The application for leave to appeal submitted to the justices at the January (1898) Term appears to have been denied by them; and if the appellant needs any relief it can be had' only by obtaining a reargument of the motion so submitted.

Daly and Bischoff, JJ., concur.

Application denied.