Pumpelly v. Village of Owego — 22 How. Pr. 385

Majority

p. 385

SUPREME COURT.

Harmon Pumpelly and others agt. The Village of Owego.

Headnote

An appeal lies to the general term from an order made at special term denying a motion for a new trial* where judgment is entered before the appeal is taken* but after the order is made.

Broome General Term, January, 1862.

Present, Balcom, Campbell, Parker and Mason, Justices.

Motion by defendant to dismiss an appeal from an order made at a special term denying plaintiffs’ motion for a new trial on a case. After the order was made denying a new trial, the defendant entered a judgment on the verdict for costs against the plaintiffs. The defendant’s counsel claimed that the plaintiffs should have appealed from the judgment, and could not appeal from the order refusing a new trial after the entry of the judgment.

George S. Camp, for plaintiffs.

N. W. Davis, for defendants.

An appeal lies to the general term from an order made at a special term, “ when it grants or refuses a new trial.” (Code, § 349, sub. 2.) The order in this case refusing a new trial, was regularly made before the judgment was entered; and we think an appeal lies from the order to the general term, notwithstanding the entry of the judgment before the same was taken. (See 19 How. Pr. R., 515.) The case of Jackson agt. Fassett, ( 33 Barb., 645 ,) and others like it, only show that a motion for a new trial on a case cannot be made at a special term after judgment has been entered unconditionally in the action. Thosei decisions are not in point upon this motion.

The motion to dismiss the appeal is therefore denied, with $10 costs to abide the event of the action.