Baldwin's Bank of Penn Yan v. Butler

Headnote

This court has no jurisdiction to entertain an appeal from an order granting or refusing a new trial upon the facts, in a case tried by a jury.

Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made the first Tuesday of June, 1891, which modified, and affirmed as modified, an order made at Circuit granting to defendant a new trial upon the minutes after a verdict had been rendered in favor of plaintiff.

The following is the opinion in full:

“ It was said in Young v. Davis ( 30 N. Y. 134 ) that ‘ it is the invariable practice of this court not to review orders made by the Supreme Court granting new trials on the ground that the verdict was either against evidence or against the weight of evidence.’ It has since been repeatedly held that the jurisdiction conferred on this court to entertain appeals from orders granting or refusing new trials, is inapplicable to jury cases where the order was made upon the facts. The General Term may review an order in such a case, but there the right of review ends. This is an appeal from an order of the General Term affirming an order of the trial judge, setting aside a verdict and granting a new trial on the merits on the ground that the verdict was against evidence. The order was not a final order. ¡No exception was or could be taken to the decision of the trial judge, and this court deals with exceptions only, unless otherwise expressly provided in the Code. The cases are decisive against the right of appeal to this court in a case like this. (Folger v. Fitzhugh, 41 N. Y. 228 ; Wright v. Hunter, 46 id. 409; Campbell v. Page, 50 id. 658 ; Standard Oil Co. v. A. Ins. Co., 79 id. 507.)

“ The appeal should be dismissed for want of jurisdiction.”