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Rosenquest v. Canary

27 A.D. 30 Court N.Y. App. Div. English

Delivered by Patterson, J.:

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p. 30
J. Wesley Rosenquest and Emeline Colville, Appellants, v. Thomas Canary and George W. Lederer, Respondents.

Headnote

A motion for a new trial upon tUe minutes cannot be made in a case tried by the court.
In a case tried before the court without a jury, a motion for a new trial upon' the minutes is hot authorized, and an order denying such a motion presents no -question for review on an appeal therefrom.
Appeal by the plaintiffs, J.. Wesley Rosenquest and Emeline Col-ville, from a judgment of -the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of March, 1897, upon the decision -of the court rendered after a trial at the New York Trial Term, before the court without a jury, dismissing the complaint upon the merits, except from so much thereof as dismisses the defendants’ counterclaim, and also from an order entered in said clerk’s office on the 17th day of March, 1897, denying the plaintiffs’ motion for a hew trial made upon the minutes.
Henry Thompson, for the appellants.
David May, for the respondents.

The precise question presented by the appeal from the judgment herein was passed upon by this court adversely to the respondents’ contention in giving construction to the identical lease upon which

p. 31
this action for rent was brought. (Rosenquest v. Noble, 21 App. Div. 583 .) It was held that the agreement relating to the deposit of $4,500, to be retained as liquidated damages for a breach of the covenants of the lease, would not satisfy the obligation of these defendants to pay money due under the lease as rent of the premises. The judgment must, therefore, be reversed and a new trial • ordered, with costs to appellant to abide event. The appeal from the order denying the motion for á new trial must be dismissed. In a case tried before a court without a jury there' is no authority for a motion for a new trial on the minutes, and an order denying such a motion presents no question for review.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Appeal from order denying motion for new trial dismissed.

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