Kellner v. Duvernoy , 277 A.D.2d 1115 ( 1950 )

— Defendants appealed from an order of Special Term, filed the record on appeal in this court, but instead of noticing the appeal for argument moved, at Special Term, for reargument without a proper showing of new facts or of any subsequent decision on the subject by a higher court. Under those circumstances and in view of the pendency of the appeal and the filing of the record on appeal in this court, the court at Special Term should not have granted reargument and rendered a decision thereon contrary to the original determination. We believe that proper procedure requires the prosecution of the appeal from the original order if the defendants felt aggrieved. Order reversed, with $20 costs and disbursements to the appellant, and the motion denied without prejudice to the prosecution of the prior appeal. Present — Glennon, J. P., Dore, Cohn, Callahan and Shientag, JJ.; Shientag, J., dissents as follows: I dissent and vote to modify, not on the procedural grounds set forth in the memorandum of the learned majority, but on the ground that defendant is entitled to an examination before trial only with respect to item 21.