Garrett v. Wood — 61 A.D. 293

Majority

p. 293

Lena Garrett, Plaintiff, v. Bradford R. Wood, Individually and as Executor, etc., of Bradford R. Wood, Deceased, and Others, Defendants.

(No. 1.)

Headnote

Costs of an a/ppeal from an oi'dev denying a new trial, where an appeal is also taken from an interlocutory judgment.

Subdivision 2 of section 3239 of the Code of Civil Procedure, which provides that where an appeal is taken from an order refusing a new trial, and an appeal is ■ also taken from the judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order, contemplates an order granting or refusing a new trial upon the merits, in which case appeals from both the judgment and the order are unnecessary. It does not apply-to a case where an appeal is taken from an interlocutory judgment, and also from an order denying a motion for a new trial made under section 1010 of the Code of Civil Procedure, which latter appeal raises questions entirely distinct from those raised by the appeal from the interlocutory judgment.

Motion by the defendants, Bradford R. Wood, individually and as executor, etc., of Bradford R. Wood, deceased, and others, to amend a decision of the Appellate Division of the Supreme Court, third department.

Barnwell Bhett Heyward, for the plaintiff.

Arthur L. Andrews, for the defendants.

This is a motion by defendant to amend a decision of this court, affirming an order refusing a new trial, by striking out from'said decision the provision allowing costs to the plaintiff, and for other relief. At the time of the argument and decision of the appeal from the order, there was argued and decided an appeal from the interlocutory judgment upon which the motion for a new trial was made,, This motion is made under section ^3239 of the Code of Civil Procedure which provides that where an appeal is taken from an order refusing a new trial, and an appeal is also taken from the judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order. By reference to the revisers’ notes found in Throop’s edition of the Code it will be seen that the order contemplated by the section quoted was an order granting or

p. 294

refusing a new trial upon the merits, in which case appeals from both the judgment and the order are unnecessary. The motion for a new trial in this case was. made under section 1010 of the Code. The appeal from the order denying that motion raised questions entirely distinct from those raised by the appeal from the interlocutory judgment. We are of opinion, therefore, that subdivision 2 of section 3239 of the Code does not apply to the decision made. This motion must, therefore^ be denied, with ten dollars costs.

All concurred.

Motion to amend decision denied, with ten dollars costs.