Gotthilf v. Sills/Opinion of the Court

The Supreme Court of New York County issued an order granting body execution (N.Y.Civ.Prac.Act § 764) against petitioner for failure to pay a money judgment which had been finally entered against him in that court in an action premised on fraud and deceit. On appeal to the Appellate Division, First Judicial Department, petitioner attacked § 764 as being violative of both the state and federal constitutions. The order was affirmed, 17 A.D.2d 723. Petitioner then filed a motion in the Court of Appeals of New York for leave to appeal (N.Y.Civ.Prac.Act § 589) which was dismissed for want of jurisdiction because 'the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.' 12 N.Y.2d 761, 234 N.Y.S.2d 714, 186 N.E.2d 563. See Chase Watch Corp. v. Heins, 283 N.Y. 564, 27 N.E.2d 282 (1940); cf. Knickerbocker Trust Co. v. Oneonta, C. & R.S.R. Co., 197 N.Y. 391, 90 N.E. 1111 (1910). An appeal to the Court of Appeals as of right (N.Y.Civ.Prac.Act § 588) was dismissed on the same ground. 12 N.Y.2 792, 235 N.Y.S.2d 379, 186 N.E.2d 811. Certiorari was granted to review the judgment of the Appellate Division, First Judicial Department. 372 U.S. 957, 83 S.Ct. 1012, 10 L.Ed.2d 11.

Section 589 of the New York Civil Practice Act provides inter alia that appeals from nonfinal orders can only be taken to the Court of Appeals by leave of the Appellate Division upon certified questions. The petitioner at no time applied to the Appellate Division for such permission. It therefore appears that the Appellate Division, First Judicial Department, 'was not the last state court in which a decision of that (constitutional) question could be had.' Gorman v. Washington University, 316 U.S. 98, 100, 62 S.Ct. 962, 963, 83 L.Ed. 1300 (1942). The judgment of the Appellate Division is not that of the 'highest court of a State in which a decision could be had' within the meaning of 28 U.S.C. § 1257. Whether, under the same section, that judgment is 'final,' a question of purely federal law, involves entirely different considerations. The petition for certiorari was therefore improvidently granted and the writ is

Dismissed.

Writ dismissed.

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.