Lawlor v. Magnolia Metal Co. — 158 N.Y. 743

Majority

p. 743

James Lawlor, Appellant, v. Magnolia Metal Company, Respondent.

(Argued March 15, 1899;

decided April 18, 1899.)

Headnote

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 21, 1898, reversing a judgment in favor of plaintiff entered upon the report of a referee, and granting a new trial.

Lawlor v. Magnolia Metal Co., 33 App. Div. 356 , appeal withdrawn.

Z.,JL Gould for appellant.

Alexander 8. Bacon for respondent.

Since the argument of this appeal, the order of the Appellate Division, which was silent as to its grounds for reversal, has been amended by that court so as to state that it was granted “ upon questions of fact and questions of law,” thus affecting our jurisdiction to review. Inasmuch as the present order of reversal is not the order from which the appeal was taken, and as it was made a condition of granting the amendment of the order that, in case the plaintiff withdraws his appeal, the defendant is to pay to him all costs and disbursements which have accrued upon the appeal to this court, we think the circumstances to be such as to warrant us in granting leave to the appellant to withdraw his appeal upon the terms stated in the order of the Appellate Division, and it' is so ordered.

All concur.

Leave to withdraw appeal granted.

Cases cited

Lawlor v. Magnolia Metal Co. 33 App. Div. 356 N.Y. App. Div. 1898-10-14 p. 743