Kelsey v. Sargent

Headnote

Where, upon trial of an issue of fact by the court or referee, an interlocutory judgment is rendered from which an appeal is taken, and also a motion for a new trial is made at the General Term as authorized by the Code of Civil Procedure (§ 1001), and an order is entered by that court affirming the judgment and denying the motion, so much of the order as denies the new trial is reviewable on appeal to this court. (Code of Civ. Pro. § 190, subd. 2.)

This was a motion to dismiss an appeal.

The following is the mem. of opinion therein :

“ The judgment rendered at Special Term made a reference necessary; therefore, it was not final but interlocutory. (Barker v. White, 58 N. Y. 204 .) An appeal, however, was taken to the General Term, and upon exceptions the defendant also moved that court for a new trial, under section 1001 of the Code. The judgment was affirmed and the motion for a new trial denied. One order embraced both decisions, and from the whole of that order the defendant appealed. So far as the appeal affects the order denying a new tidal it was well taken (Code, § 190, subd. 2; Raynor v. Raynor, 94 N. Y. 248 -251), and as the motion to dismiss relates to the whole appeal, and not a part only, it should be denied, and as the plaintiff asks for too much he should pay costs.

“■-Motion denied with $10 costs.”