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.
MR. JUSTICE SANFORD delivered the opinion of the Court.
This record presents a preliminary question as to our
jurisdiction under the writ of certiorari.
The petitioners brought an action in equity in the Supreme Court
of New York against George J. Gould and others for an accounting of
syndicate funds. Gould having died before the trial, the
petitioners, proceeding under a rule to show cause, moved for an
order substituting the respondents, the executors of his estate, as
parties defendant, and reviving the action as against them. The
court denied this motion and dismissed the rule to show cause, and
this was affirmed by the Appellate Division without opinion. 215
App.Div. 811. The petitioners moved the Appellate Division "for
leave to appeal to the Court of Appeals." This was denied. The
petitioners then took an appeal without leave. This was dismissed
by the Court of Appeals, without opinion. 242 N.Y. 604.
The petitioners contend that, although the judgment of the
Appellate Division does not finally and completely dispose of the
entire action, it is nevertheless a "final judgment" which may be
reviewed under § 237b of the Judicial Code, as it is a "final" and
complete judgment in an ancillary and "independent proceeding" to
revive the action against the respondents. The respondents contend
that, even if this be so, it is not, under that section,
Page 276 U. S. 286
the judgment of the highest court of the state in which a
decision could be had, since the petitioners did not apply to the
Court of Appeals for leave to appeal.
Section 588 of the New York Code of Civil Practice authorizes
the taking of an appeal to the Court of Appeals from a judgment or
order of the Appellate Division "which finally determines an action
or special proceeding." Subdivision 1 provides that such an appeal
may be taken "as of right" in certain classes of cases. Subdivision
4
* provides that,
where such an appeal does not lie as of right under Subdivision 1,
it may be taken where the Appellate Division certifies that in its
opinion a question of law is involved which ought to be reviewed,
or where, in case of the refusal so to certify, an appeal is
allowed by the Court of Appeals. To obtain such a discretionary
appeal, application may be made to the Appellate Division for leave
to appeal, and in case of refusal, to the Court of Appeals.
See § 591;
Sultzbach v. Sultzbach, 238 N.Y. 353,
355. And when an appeal which is not a matter of right is taken
without leave, it must be dismissed.
People v. Trimarchi, 231
N.Y. 263, 268, 131 N.E. 910; Pillsbury Flour Mills Co. v.
Nicotera, 234 N.Y. 534;
Matter of Schmidt, 236 N.Y.
645, 646;
Donovan v. Cunard Steamship Co., 236 N.Y. 651;
Johnson v. Whaley, 239 N.Y. 570, 571.
Assuming the correctness of the petitioners' contention that the
judgment of the Appellate Division is a "final" determination of an
independent proceeding to revive the action against the
respondents, the dismissal by the Court of Appeals of the appeal
sued out without leave must be taken, nothing else appearing, as a
holding by that court that the case was not one in which an appeal
lay as a matter of right. And, since the petitioners, when the
Appellate Division refused them leave to appeal, did not make an
application to the Court of Appeals for such
Page 276 U. S. 287
leave, the judgment is not that of the highest court of the
state in which a decision could be had.
See Newman v.
Gates, 204 U. S. 89,
204 U. S. 95. In
any respect, we are without authority to review the judgment, and
the writ is
Dismissed for want of jurisdiction.
MR. JUSTICE STONE did not sit in this case.
* Changed to Subdivision 5 by Laws 1926, c. 725.