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Burn v. National Union Bank of Dover

66 Misc. 2d 504 Court Supreme Court, Appellate Term, First Department, Decision date 1971-04-07 English

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p. 504
Syril K. Burn, Respondent-Appellant, v. National Union Bank of Dover, N. J., as Executor of Bertram M. Berla, Deceased, Respondent, and Philip Schlesinger et al., Appellants. Katherine Antin et al., Respondent-Appellants, v. National Union Bank of Dover, N. J., as Executor of Bertram M. Berla, Deceased, Respondent, and Philip Schlesinger et al., Appellants.
Supreme Court, Appellate Term, First Department,
April 7, 1971.
p. 505
Katz é Gantman (Sidney Advocate of counsel), for appellants. Gerald C. Barton and Richard Rodwin for Katherine Antin and others, respondents-appellants. David B. Ampel for Syril K. Bum, respondent-appellant. Thomas E. Patersonforrespondent."

While an appeal lies of right from an order or interlocutory judgment entered on a determination in favor of a plaintiff after a separate trial of an issue of liability (Hacker v. City of New York, 25 A D 2d 35 ), a different rule applies when the determination is in favor of a defendant. In such case, since judgment may be entered thereon, the appeal must be taken from the judgment (CPLR -5701). The appeals of the plaintiffs are, in effect, from the verdict of the jury exculpating one of the defendants. They are therefore premature and should he dismissed.

Since the verdict against the defendants-appellants is supported by the evidence and we find no merit to their other contentions, the order directing an assessment of damages against them should be affirmed.

The appeals of the plaintiffs should be dismissed, without costs; the orders should be affirmed, with $10 costs.

Concur — Gold, J. P., Quinn and Lupiano, JJ.

Appeals dismissed and orders affirmed, etc.

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