Keller v. Cleary

PER CURIAM. The defect pointed out upon the former appeal, relative to service of the papers (56 App. Div. 466, 67 N. Y. Supp. 862), has now been remedied, and therefore this appeal is properly brought. The rule laid down in Sperling v. Boll, 26 App. Div. 64, 50 N. Y. Supp. 209, is not applicable. In that case two appeals were taken; the first being dismissed for failure to print and serve papers within the time prescribed by the rules of practice, and the second for the reason that no leave had been obtained to bring it, and it had not been reinstated. Here, however, the former appeal was a nullity, it appearing that this court was “without jurisdiction to entertain” it, wherefore it was dismissed, so that this is the first and only appeal that has been had in the proceeding. Upon the merits, we concur in the conclusion reached by Mr. Justice INGRAHAM, as stated in his opinion upon the former appeal,—that, under the statute as applicable to the facts here appearing, the commissioner has no authority to prosecute this proceeding. The order accordingly should be reversed, and the proceeding dismissed, without costs.