
    James F. Thompson, App’lt, v. James Kearney, Resp’t.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed February 6, 1888.)
    
    Court of common pleas—When it cannot grant an order giving LEAVE TO APPEAL TO THE COURT OF APPEALS.
    A judgment was rendered by this court, affirming the judgment of the city court of New York, and duly filed there, and an order therein entered making it the judgment of that court. An order was then granted by this court to show cause why the remittitur from the city court should not be recalled, and judgment of this court be awarded, so as to permit on terms the trial of issues of fact raised by the defendant’s answer. Subsequent to that, notice was given by the counsel for the appellant that the remittitur be recalled from the city court, and the judgment of that court and this be amended so as to direct the trial of this action, upon its merits, in the court below, and the order to show cause was withdrawn and countermanded. Further notice was given by the same party of a motion upon the appeal book, and all the proceedings in the case, for leave to appeal to the court of appeals. Held, that in the absence of the appeal record, and in view of the final judgment already entered, the relief sought could not be granted.
    
      A. Thain, for app’lt; R. H. Channing, for resp’t.
   Per Curiam.

On December 8, 1887, an order to show-cause was granted by a judge of this court, returnable on the first day of the January term, why the remittitur from the city court should not be recalled, and the judgment of this court should not be awarded so as to permit, upon terms, the trial of the issues of fact raised by the defendant’s answer. This order provided for a temporary stay of proceedings in the case.

Under date of December 9, 1887, notice was given by the. counsel for the appellant, and the order to show cause was withdrawn and countermanded, with the further notice that the remittitur, should be recalled from the city court of New York, and that the same, and the judgment of this court», he amended so as to direct the trial of this action, upon its merits, in the court below.

By a further and later notice (December 16, 1887), the appellant’s counsel moved upon the appeal book, and all the proceedings in the case, for leave to appeal to the court of appeals, and for other and further relief.

It appears by the papers submitted, that prior to the service of the notice of this application the judgment of affirmance by this court was duly filed in the court below, and by an order therein entered was made the judgment of that court.

Until the remittitur is returned to this court, upon a proper application, we are without authority to entertain the present motion. _ The last notice of motion (December 16, 1887) was for leave to appeal to the court of appeals, upon which, in the absence of the appeal record and in the fact of the final judgment already entered, we are unable to grant the relief sought. The People ex rel. John W. Smith v. The Village of Nelliston, 79 U. Y., 638.

The motion must, therefore, be denied.  