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Taylor v. Smith

164 N.Y. 399 Court N.Y. Decision date 1900-11-13 English

Delivered by *400 Parker, Ch. J.

Contents

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p. 399
George R. Taylor, Respondent, v. Edward Smith, Appellant.

Headnote

Appeal—Intermediate Order—Code Crv. Pro. §§ 999, 1316— Remittance op Case por Consideration by Appellate Division. An order denying a motion for a new trial upon the minutes upon the grounds specified in section 999 of the Oode of Civil Procedure, is an intermediate order within the meaning of section 1316; and an order of the Appellate Division, striking out from a notice of appeal thereto a statement of appellant’s intention to bring up for review the order denying ' the motion for a new trial, must be reversed and the case remitted to the Appellate Division to consider the questions brought up by the notice of appeal which were not passed upon by that court.
Taylor v. Smith, 24 App. Div. 519 , reversed.
(Argued October 29, 1900;
decided November 13, 1900.)
Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 10,1898, affirming a judgment in favor of plaintiff entered upon a verdict, and from an order of said Appellate Division entered January 10, 1898, striking from the notice of appeal the words “ and it is the intention of the appellant herein to bring up for review before this Court the order denying appellant’s motion for a new trial, dated and entered in the office of the clerk of the County of Erie on the 21st day of January, 1891, and the whole and every part thereof.”
Tracy G. Becker for appellant.
The judgment of affirmance below, and the order striking out from the notice of appeal to the Appellate Division the 'words declaring appellant’s intention to bring up for review the order denying his motion for a new trial, should be reversed, and the proceedings remitted to the Appellate Division with directions that it should proceed to determine the question whether the verdict of the jury was contrary to the evidence. (Code Civ. Pro. § 1316; Voisin v. C. M. Ins. Co., 123 N. Y. 120 ; Thurber v. H. B., M. & F. R. R. Co., 60 N. Y. 328 ; People v. Priori, 163 N. Y. 99 .)
Moses Shire for respondent.

The jury having rendered a verdict in favor of the plaintiff on the trial of this action, defendant’s counsel moved the court upon its minutes for a new trial on the grounds specified in section 999 of the Code, which motion was denied and an order to that effect' entered. Subsequently judgment was entered, from which the defendant appealed to the Appellate Division, stating in the notice of appeal his intention “ to bring up for review before this court the order denying appellant’s motion for a new trial.” The plaintiff moved that court to strike from the notice of appeal the statement therein of defendant’s intention to bring up for review the order denying the motion for a new trial, and the court granted the motion, holding that the order was not intermediate within the meaning of section 1316 of the Code. In thus holding the court erred. (Fox v. Matthiessen, 155 N. Y. 177 .)

It follows that the record presented questions which the Appellate Division should have passed upon and did not, and hence the order amending the notice of appeal should be reversed and the case remitted to the Appellate Division of the fourth department to consider the questions brought up by the notice of appeal that were not passed upon by that court.

This practice is sanctioned by Matter of De Camp ( 151 N. Y. 557 ) and Fox v. Matthiessen (supra).

The order should be reversed, with costs, and the record remitted to the Appellate Division.

Gray, O’Brien, Haight, Landon, Cullen and Werner, JJ., concur.

Order reversed, etc.

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