
    Hyman Goldman Plumbing and Heating Corporation, Plaintiff, v. Carl G. Nesbit and Another, Defendants. In the Matter of the Proceedings to Have David J. Rosen, Appellant, Punished as and for a Criminal Contempt of Court.
    First Department,
    July 3, 1935.
    
      David J. Rosen, appellant in person, for the motion.
    
      John J. Bennett, Jr., Attorney-General, opposed.
   Merrell, J.

The defendant committed a most flagrant contempt of court and was justly held in contempt by the trial justice whom he unjustly and maliciously assailed. The Appellate Term (three justices taking part) unanimously affirmed the order holding him in contempt and this court affirmed the Appellate Term. Three courts have held the appellant in contempt. Two justices of this court dissented upon purely technical grounds, in no wise affecting the justice or the merits of the order holding the appellant in contempt. We see no reason why this offender should be given a fourth chance to escape deserved punishment, or any occasion for shedding tears in his behalf. There is no occasion for granting a special favor to this appellant by giving him consideration which would not be accorded to the case of any other person.

We are, therefore, of the opinion that the motion for leave to appeal to the Court of Appeals should be denied.

Martin, P. J., and Townley, J., concur; O’Malley and Untermyer, JJ., dissent.

O’Malley, J. (dissenting).

A member of the bar, who has been punished for contempt, fined $250, and sentenced to thirty days’ imprisonment, seeks leave to appeal to the Court of Appeals from our order of affirmance of a determination of the Appellate Term, which affirmed an order of the justice of the Municipal Court who imposed the sentence. That justice has since died and application to him for amelioration of the sentence is no longer possible. Without permission from this court, no appeal lies.

The affirmance was by a divided court, two justices dissenting and voting for a reversal, in an opinion stating grounds which to them seemed sufficient. These justices are still of the same opinion and, in a case where the consequences are so serious, the matter should be reviewed by our court of last resort, even though the decision of the majority is correct and would meet with affirmance on appeal.

I, therefore, dissent and vote to grant leave.

Untermyer, J., concurs.

Motion for leave to appeal to the Court of Appeals denied.  