William O. Douglas

“ If he lacks money with which to pay the judgment, nothing further is available for him by New York law. The case illustrates that concepts of finality in one context cannot always be transferred to another.
In my opinion, petitioner might reasonably have concluded that a final order had been entered in this case and that Chase Watch did not control. Therefore, his action in docketing an appeal in the Court of Appeals, and not invoking the certification procedures applicable only to nonfinal orders, was justifiable as a matter of federal law. ”

“ It is said that petitioner could have, by employment of the certified question procedure, obtained a full review of his constitutional questions by the New York Court of Appeals, but instead chose a route that resulted in the dismissal of his appeal.
The determination of the Court of Appeals that this body execution order is a nonfinal order subject to appeal only via the certified question route came as a surprise. Theretofore, the one and only New York case involving a body execution order and the question of how one should obtain review in the Court of Appeals was Chase Watch Corp. v. ”

“ The decision of the Court of Appeals in this case establishes, of course, as a matter of state law that the order was not final. While that determination is binding on us, it does not preclude us from holding that the decision was sufficiently unexpected so as not to bar, in the interests of justice, the certiorari route here. ”