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Wunch v. Shankland

170 N.Y. 573 Court N.Y. Decision date 1902-02-18 English

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p. 573
Edward Wunch, Appellant, v. David Shankland, as President of Typographical Union Number Nine, Respondent.

Headnote

Wimch v. ShanTcland, 59 App. Div. 482 , appeal dismissed.
(Submitted February 10,1902;
decided February 18, 1902.)
Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 21, 1901, which reversed a judgment in favor of plaintiff, entered upon a verdict, and an order denying a motion "for a new trial and granted a new trial.
The motion was made upon the ground that the appeal is from an order granting a new trial upon the facts and upon the law, which order is not appealable to the Court of Appeals.
Tracy G. Becker for motion.
Thomas E. Boyd opposed.

If a verdict had been directed for an amount certain the appellant would have been correct in his claim that the reversal by the Appellate Division presented merely a question of law; but the damages were unliquidated and their amount submitted to the jury for determination, and the motion for a new trial raised a question of fact as to the amount of the damages, which was necessarily presented to the Appellate Division to pass upon. That court has reversed both on the facts and the law, and the motion to dismiss the appeal is granted, with costs, and ten dollars costs of motion.

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