John G. Carlisle, Respondent, v. Reon Barnes, Appellant

John G. Carlisle, Respondent, v. Reon Barnes, Appellant. (Argued November 20, 1905; decided December 12, 1905.) Appeal — Application for Leave to.Appeal to the Court of Appeals — Code Civ. Pro. § 191. Where an application for leave to appeal to the Court of Appeals was made to the chief judge, who denied the same, and a subsequent application was made to another judge of the court and the appeal allowed, the order granting such application must be set aside, since the statute (Code Civ. Pro. § 191) does not contemplate or 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. Reported below, 102 App. Div. 573. Motion to set aside an order granted by a judge of the Court of Appeals allowing an appeal to this court from a judgment of the Appellate Division of the Supreme Court in the first judicial, department, entered April 7, 1905, unanimously affirming a judgment in favor of plaintiff entered1 upon a verdict and an order denying a motion for a new trial. Austen G. Fox, William Edmond Curtis and Henry M. Ward for motion. The order granted allowing an appeal herein should be vacated under section 776 of the Code of Civil Procedure. (Talcott v. Burnstine, 13 N. Y. S. R., 552; Hallgarten v. Eckert, 1 Hun, 117; Good v. Daland, 28 N. Y. S. R. 935.) Section 191 of the Code authorizes only one application to a judge of this court for the allowance of an appeal. That application having been considered and denied, no further application can be made to any other judge. (Code Civ. Pro. §§ 767-779.) Charles F. Brown and F. H Van Vechten opposed. The order allowing the appeal is not reviewable. (Hannon v. Siegel-Cooper Co., 164 N. Y. 566.) The jurisdiction of a judge of the Court of Appeals to allow an appeal is not dependent upon the giving of any notice to the respondent. (Hannon v. Siegel-Cooper Co., 164 N. Y. 566.) The failure to give notice of the application for leave to appeal is not jurisdictional. (Good v. Daland, 119 N. Y. 153 ; Code Civ. Pro. §§ 772, 1310.) Power conferred upon a judge of the Court of Appeals to allow an appeal is not limited by the provisions in section 776 of the Code. (Riggs v. Purcell, 74 N. Y. 370 ; Easton v. Pickersgill, 75 N. Y. 599.) The court is without power to grant the motion. (Croveno v. A. A. R.R. Co., 150 N. Y. 225.) [MAJORITY — Per Curiam.] Per Curiam. 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 arid 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 onr 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 re viewable 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. Motion granted.