Argued November 20, 1905
Decided December 12, 1905
Austen G. Fox, William Edmond Curtis and Henry M. Ward for motion.
Charles F. Brown and F.H. Van Vechten opposed.
In the first instance an application for leave to appeal to this court was made to the chief judge, who denied the same. Thereafter the appellant applied to that judge for leave to renew the application to another judge of the court. This was granted on condition that the appellant give notice to the respondent of such application and that he be accorded a hearing thereon. Subsequently an application was made ex parte to a judge of the court and the appeal allowed. This motion is to set aside the order granting such allowance.
We are of opinion that section 191 of the Code of Civil Procedure does not contemplate nor authorize a repetition of such an application, after its denial by one judge of the court, to the other judges of the court in succession until the list of judges has been exhausted. An appellant may, in the first instance, select any judge to whom to make the application, but, having made his election, he is concluded by the decision made by the judge to whom the application is made, at least, in the absence of leave given by that judge to renew the motion before another judge. It may be that section 776 of the Code, requiring that a subsequent application in reference to the same matter be made only to the same judge who heard the original application, or to the court, is not applicable to this case, for until the appeal is allowed the case is not in this court. Nevertheless, the provisions of the section, as well as those of section 529 of the Code of Criminal Procedure, clearly indicate the legislative policy that the disposition of applications made to the discretion of one judge and denied, should not thereafter be the subject of review by another judge. A contrary rule as to allowance of appeals would create confusion in practice and would impose great and unnecessary labor on the members of the court. The rights of an unsuccessful appellant are sufficiently protected by the double privilege given him, first, an application to the Appellate Division, and, second, a renewal of that application to one of the judges of this court. If the permission accorded by the judge who, in the first instance, passed on the application for leave to appeal in this case could authorize a renewal of the application before another judge (which may well be doubted), the conditions on which that permission was given were not complied with and, hence, the order allowing the appeal was irregular and should be set aside. These views in no way conflict with our decision in Hannon v. Siegel-Cooper Co. ( 164 N.Y. 566). There we held that an allowance of an appeal to this court, regularly granted by a judge thereof, was not reviewable by the court. In the case before us the appeal was not regularly allowed, and that is the ground of the present motion.
The motion to set aside order allowing appeal should be granted.
CULLEN, Ch. J., GRAY, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur; O'BRIEN, J., not voting.