United States Supreme Court Cases & Opinions

U.S. Supreme Court

McMaster v. Gould, 276 U.S. 284 (1928)

McMaster v. Gould

No. 85

Argued October 28, 1927

Decided March 5, 1928

276 U.S. 284

Syllabus

By the law of New York (Civ.Pr.Act. § 588), appeals from judgments of the Supreme Court, Appellate Division, which finally determine actions or special proceedings may be taken to the Court of Appeals as of right in certain cases, and in others may be allowed upon application, by the Appellate Division or, in case of refusal, by the Court of Appeals; but if an appeal which is not of right be taken without such leave, it must be dismissed. Petitioners, having been refused leave by the Appellate Division, sued out an appeal which was dismissed by the Court of Appeals without opinion.

Held, that the dismissal must be taken as a holding that the case was not appealable of right, and that, since the petitioners had omitted to apply for leave to the Court of Appeals, the judgment of the Appellate Division was not that of the highest court of the state in which a decision could be had, and the writ of certiorari must therefore be dismissed. P. 276 U. S. 286.

Dismissed.

Page 276 U. S. 285

Certiorari, 273 U.S. 677, to the Supreme Court of New York, Appellate Division, 215 App.Div. 871, to review a judgment affirming a refusal to make an order of substitution.