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Young v. Gilmour

167 N.Y. 500 Court N.Y. Decision date 1901-06-14 English

Delivered by Landon, J.

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p. 500
William R. Young, Respondent, v. Joseph Gilmour, Appellant.
(Submitted June 6, 1901;
decided June 14, 1901.)

Headnote

Appeal — Order- Denying Motion for a New Trial upon Exceptions not Bbviewable. An order of the Appellate Division denying a motion ..for a new trial made upon exceptions pursuant to section 1001 of the Code of Civil Procedure, made intermediate the interlocutory and final judgments, is not a final order, and in the absence of an allowance of “the appeal and a certificate of the questions to be reviewed is not re viewable by the Court of Appeals.
Young v. Gilmour, 59 App. Div. 612 , appeal dismissed.
Appeal from an order of tlie Appellate Division of the Supreme Court in the second judicial department, made March 8, 1901, overruling defendant’s exceptions, ordered to be heard in the first instance by the Appellate Division, and denying a motion for a new trial.
David J. Newland for appellant.
This appeal from the order denying defendant’s motion for a new trial under section 1001 is based on exceptions and presents only questions of law. (Raynor v. Raynor, 94 N. Y. 248 ; Dorchester v. Dorchester, 121 N. Y. 156 .)
W. H. Deady for respondent.
The order from which the appeal is taken is not appealable to this court as a matter of right. (Code Civ. Pro. § 190, subd. 1; Van Arsdale v. King, 155 N. Y. 325 .)

The order of the Appellate Division denying the defendant’s motion for a new trial made intermediate the interlocutory and final judgment was not a final order and, therefore, not appealable in the absence of the allowance thereof by the Appellate Division and its certificate of the questions to be reviewed. (Code O. P. § 190, subd. 2.) Subd. 1 provides for appeals from orders granting new trials upon

p. 501
exceptions, not from orders denying them. Under section 1336 the defendant, after the denial of his motion for a new trial by the Appellate Division, could not appeal until the entry of final judgment by the trial court pursuant to the interlocutory judgment. After such entry an appeal lies directly from such final judgment and brings up for review the order of the Appellate Division refusing the new trial.

The appeal should he dismissed, with costs.

Parker, Ch. J., Bartlett, Haight, Yaks, Cullen and Werner, JJ., concur.

Appeal dismissed.

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