Corbett v. Spring Garden Insurance

Headnote

Reported below, 40 App. Div. 628 .

Motion to place upon the present calendar an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1899, affirming a judgment in favor of plaintiff entered upon a v.erdict and an order denying a motion for a new trial.

The motion was made upon the grounds: 1. That this is the second appeal in the case; the return on the first appeal was filed April 27,1895, a calendar having been made up January 14, 1895, and was placed upon the calendar made up January 18,1897; a new trial was ordered and the return in the present appeal was filed September 7, 1899, the present calendar having been made up March 13, 1899; that section 195 of the Code of Civil Procedure does not necessarily apply to the next

calendar after the- return is filed, but may be construed to apply to the present calendar.

2. That one of the witnesses for respondent is of an age that indicates a possibility of his death before a new trial could be •had in case one should be ordered by the Court of Appeals