Summary
In Mutual Life Ins. Co. of N.Y. v. 160 East 72nd St. Corp. (272 App. Div. 48) the court stated at page 49: "A motion for the same relief having been made * * * Special Term properly declined to entertain jurisdiction of this motion, in the absence of special circumstances, without leave of the justice or of a court held by the same justice who denied the former motion."
Summary of this case from General Crushed Stone v. Cent. ConstrOpinion
March 21, 1947.
Appeal from Supreme Court, New York County, BOTEIN, J.
David Stein of counsel ( Arthur Knox with him on the brief; Knox, Stein Knox, attorneys), for appellants.
Stuart N. Updike of counsel ( John R. Schoemer, Jr., with him on the brief; Townley, Updike Carter, attorneys), for respondent.
A motion for the same relief having been made by the testator of defendants-appellants in his lifetime, Special Term properly declined to entertain jurisdiction of this motion, in the absence of special circumstances, without leave of the justice or of a court held by the same justice who denied the former motion (1 Rumsey on Practice [2d ed.], pp. 271-272, and cases cited; People v. National Trust Co., 31 Hun 20, 25; Averell v. Barber, 44 N.Y. St. Rep. 542; Riggs v. Pursell, 74 N.Y. 370, 378). The requirement of leave to renew with respect to interlocutory orders does not depend upon regarding the former order as res judicata ( Walker v. Gerli, 257 App. Div. 249), but is a practice of long standing for the sake of orderly procedure to avoid renewal of contested motions for the same relief at the same stage of the litigation. (See, also, Platt v. New York Sea Beach Ry. Co., 170 N.Y. 451, 458.)
The order appealed from should be affirmed, with $20 costs and disbursements to the respondent, with leave to the defendants-appellants to answer within ten days after service of order with notice of entry thereof, on payment of said costs.
MARTIN, P.J., GLENNON, DORE, COHN and VAN VOORHIS, JJ., concur.
Order unanimously affirmed, with $20 costs and disbursements, with leave to the defendants-appellants to answer within ten days after service of the order, with notice of entry thereof, on payment of said costs.