Lane v. Bailey — 45 Barb. 119

Majority

p. 119

Lane and Huddleston vs. Bailey and Southard.

Headnote

An appeal from an order denying a motion for a new trial, made on the Judge’s minutes, may be taken, either before or after the judgment has been entered.

Should the verdict be set aside, on the appeal the special term can, on motion, vacate the judgment, as it will then have no foundation.

Where an appeal is taken from a judgment and there has been an appeal, also, from an order denying a motion for a new trial, on the judge’s minutes, the better course is to hear both appeals argued on the appeal from the judgment.

MOTION to dismiss an. appeal from an order made at a special term, upon the Judge’s minutes, denying a motion for a new trial. Judgment being entered for the plaintiffs, the defendants failed to appeal from it, but appealed from the order entered upon the Judge’s minutes. .

T. Cronin, for the appellants.

S. T. Freeman, for the respondents.

p. 120

[New York General Term,

November 7, 1865.

The second subdivision of section 349, of the Code of Procedure gives the right of appeal from an order denying a motion for a new trial. No qualification is imposed limiting the right to cases where the judgment has not been entered. This subject was considered at general term in the sixth district, in Pumpelly v. The Village of Owego, (22 How. Pr. R. 385.) The right to appeal was there upheld, in a similar case to the present. On the next page of the same volume occurs the case of Soverhill v. Post, decided in the third district, where a contrary rule was held; but as it seems to me on very insufficient reasons. The court consider the appeal in the latter case as nugatory, because the judgment will not be affected by the decision on the appeal, even should the verdict be set aside. With great respect, I differ. Should the verdict be set aside, the special term can, on motion, vacate the judgment, as it will then have no foundation.

Where an appeal is taken from a judgment, and there has been an appeal, also, from a denial of a motion for a new trial on the Judge’s minutes, we think it the better course to hear both appeals argued on the appeal from the judgment. .By section 329 of the Code, all intermediate orders may be reviewed on the appeal from the judgment, and the facts, as well as the law, may under such circumstances be reviewed.

The motion to dismiss the appeal should be denied, but without costs.

Ingraham, Leonard and Geo.