opinion: GOTTHILF v. SILLS et al.
  No. 50.
  Argued October 24, 1963.
  —Decided November 18, 1963.
  O. John Rogge argued the cause and filed briefs for petitioner.
  Theodore Chamas argued the cause and filed a brief for respondents.
  Louis J. Lefkowits, Attorney General of New York, filed a brief as amicus curiae, urging dismissal of the writ as improvidently granted or, in the alternative, affirmance. With him on the brief was Paxton Blair, Solicitor General.
  Per Curiam.
  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 App. Div. 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, 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. 2d 792, 186 N. E. 2d 811. Certiorari was granted to review the judgment of the Appellate Division, First Judicial Department. 372 U. S. 957.
  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 (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.
choices: comity: civil rights comity: criminal procedure comity: First Amendment comity: habeas corpus comity: military comity: obscenity comity: privacy comity: miscellaneous comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals assessment of costs or damages: as part of a court order Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules judicial review of administrative agency's or administrative official's actions and procedures mootness (cf. standing to sue: live dispute) venue no merits: writ improvidently granted no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) no merits: adequate non-federal grounds for decision no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) no merits: miscellaneous standing to sue: adversary parties standing to sue: direct injury standing to sue: legal injury standing to sue: personal injury standing to sue: justiciable question standing to sue: live dispute standing to sue: parens patriae standing standing to sue: statutory standing standing to sue: private or implied cause of action standing to sue: taxpayer's suit standing to sue: miscellaneous judicial administration: jurisdiction or authority of federal district courts or territorial courts judicial administration: jurisdiction or authority of federal courts of appeals judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court judicial administration: jurisdiction or authority of the Court of Claims judicial administration: Supreme Court's original jurisdiction judicial administration: review of non-final order judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) judicial administration: ancillary or pendent jurisdiction judicial administration: extraordinary relief (e.g., mandamus, injunction) judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) judicial administration: resolution of circuit conflict, or conflict between or among other courts judicial administration: objection to reason for denial of certiorari or appeal judicial administration: collateral estoppel or res judicata judicial administration: interpleader judicial administration: untimely filing judicial administration: Act of State doctrine judicial administration: miscellaneous Supreme Court's certiorari, writ of error, or appeals jurisdiction miscellaneous judicial power, especially diversity jurisdiction