Hein v. Hein — 148 A.D. 247

Majority

p. 247

Edna Valentine Hein, Respondent, v. Isa Willard Hein, Appellant.

(No. 1.)

First Department,

December 1, 1911.

Headnote

Practice — appeal from judgment — subsequent separate appeal from order denying new trial — effect.

Where subsequent to the filing of a record on appeal from a judgment, an order was entered denying a motion made at Trial Term for a new trial and a separate appeal was taken from that order the Appellate Division, upon being apprised of the facts, will examine the appeal from the judgment as if there were also before it the appeal from the order denying the motion for a new trial.

Since, however, the appeal from the order is not a part of the record that order can be neither affirmed nor reversed by the decision.

Appeal by the defendant, Isa Willard Hein, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of August, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, granting to the plaintiff a divorce and also awarding her the custody of her child.

Albert M. Levy, for the appellant.

Max D. Steuer, for the respondent.

In this case the issues of adultery raised by the pleadings were sent to a jury for trial and determined by them in favor of the plaintiff. On the casé coming on for trial at Special Term on these findings of the jury, the judgment appealed from was granted. We have examined the record and think the judgment sustained by the finding of the jury and that no error was committed which would justify a reversal of the judgment.

From the record it appears that, although a motion was made after the rendition of the verdict for a new trial on the judge’s minutes, that motion was denied. No order was entered denying that motion, and there is no appeal on this record from an order denying a motion for a new trial. We are informed by counsel, however, and that fact also appears upon another appeal to this court, that subsequent to the filing of this record an order was entered at Trial Term denying that motion, and upon that order this defendant has taken a separate appeal which is still pending. In view of this statement we have examined the case as if there was before us an appeal from an order denying a motion for a new trial on the judge’s minutes. We are satisfied from that examination that the verdict of the jury was sustained by the evidence, and that even if we had jurisdiction to review the facts upon which the jury rendered their verdict we would not be justified in disturbing the judgment. As the appeal from the order denying the motion for a new trial at the Trial Term is not a part of this record and is not now before us, we cannot now affirm that order, but make this intimation to avoid the necessity of the defendant’s further prosecution of the appeal from the order denying a motion for a new trial. Ón this appeal, however, we can do nothing more than to affirm the judgment appealed from.

The judgment is, therefore, affirmed, with costs.

Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Miller, JJ.

Judgment affirmed, with costs.