Merceron v. Fowler

The appeal should not have been dismissed. The order of the general term of the Marine Court reversing the special term order granting a new trial, and ordering judgment for the defendant on the verdict, was a final determination, and the judgment so entered was in effect the judgment of the general term. Appeals from such orders have been entertained. (Schwartz v. Oppold, 74 N. Y. 807 .) An appeal to this court on a similar principle was entertained in The Manufacturers' & Builders' Bank v. Kiersted ( 6 Daly, 160 ), where the general term of the Marine Court, on an appeal from an order denying a motion to strike out a ■ emurrer as frivolous, reversed the order, and ordered judg

A reargument should be granted, the remittitur having been returned to this court. An order should be entered placing the cause on the calendar of the (January) general term for argument.

This appeal ought not to have 0been dismissed. It is within the 'principle of Caughey v. Smith ( 47 N. Y. 244 ). There is a judgment of the Marine Court, entered in pursuance of the order of its general term; and an appeal was regularly taken from it, which appeal is now before us. As the Marine Court general term has already passed upon the case, it is difficult to see why it should be called upon to review a second time the proceedings of the trial term.

The' judgment is to all intents and purposes the judgment of general term.

It is said that the cause was, after the dismissal of the appeal by the May general term of this court, remitted to the Marine Court. It appears that the remittitur and the record have been returned to this court, so that there is no objection to the reargument of the case.

Charles P. Daly, Ch. J., concurred.