Henry v. . Allen
Cases that cite this one
18 later published cases cite this decision.
- Ruben v. American & Foreign Insurance (Appellate Division of the Supreme Court of New York 1992)
- Domboorajian v. Domboorajian (Mich. 1926)
- Chambliss v. Hass (Iowa 1904)
- Banow v. Simins (Appellate Division of the Supreme Court of New York 1976)
- Calagna v. Green (Appellate Division of the Supreme Court of New York 1953)
- Cupo v. McGoldrick (Appellate Division of the Supreme Court of New York 1951)
- Kleinman v. Metropolitan Life Insurance (N.Y. 1948)
- City of Beacon v. Asher Bernstein Realty Corp. (Appellate Division of the Supreme Court of New York 1946)
- In re Allen (Court of Customs and Patent Appeals 1940)
- Kirkpatrick Home for Childless Women v. Kenyon (Appellate Division of the Supreme Court of New York 1924)
- Waldo v. . Schmidt (N.Y. 1910)
- People ex rel. Tobenkin v. O'Connell (Appellate Division of the Supreme Court of New York 1909)
- James McCreery Realty Corp. v. Equitable National Bank (Appellate Terms of the Supreme Court of New York 1907)
- Rice v. Parrott (Neb. 1906)
- In re the Revocation of the Probate of the Alleged Last Will and Testament of Murphy (Appellate Division of the Supreme Court of New York 1903)
- Birnbaum v. . May (N.Y. 1902)
- Smith v. Matthews (New York Supreme Court 1897)
- Howey v. Lake Shore & Michigan Southern Railway Co. (New York Supreme Court 1896)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The appellant moves for an order directing that the return herein be transmitted to the Supreme Court, and that this case be remanded there, without prejudice to the appeal to this court heretofore taken, for the purpose of enabling him to move for a new trial on the ground of newly-discovered evidence.
We deny this motion for the reason that the pendency of the appeal is no bar to a motion in the court below for a new trial. We have heretofore pointed out that upon an appeal to this court the record itself is not transmitted to us, but a transcript thereof, and the case for all general purposes still remains in the court of original jurisdiction. (People ex rel. Hoffman v. Board of Education, 141 N. Y. 86.) Tn the above case we said : “ In all matters pertaining to the appeal itself and to the proper hearing thereon this court has jurisdiction, and also in regard to all applications which by statute may be made to this court after the taking of the appeal, but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court.”
The production in the court below of the return to this court on the motion for a new trial is manifestly unnecessary, as that motion is made on facts dehors the record.
If the Supreme Court, in the exercise of its discretion, grants the motion for a new trial, the legal effect will be the vacating of the judgment from which the appeal has been taken to this court, and a motion to dismiss the appeal would then be proper. .
The motion should be denied, without costs.
All concur.
Motion denied.
Case-law data current through September 30, 2026. Source: CourtListener bulk data.