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Garrison v. Sun Printing & Publishing Ass'n

222 N.Y. 691 Court N.Y. Decision date 1918-02-12 English

Contents

Majority

p. 691
Rose G. Garrison, Appellant, v. Sun Printing and Publishing Association, Respondent.

Headnote

Appeal — libel — appeal from unanimous affirmance will not lie unless permission to appeal has been obtained.
Where a judgment based on the verdict of a jury in an action for libel has been unanimously affirmed by the Appellate Division, an appeal to the Court of Appeals, taken prior to June 1, 1917, will not lie unless upon compliance with subdivision 2 of section 191 of the Code of Civil Procedure as it then stood.
Garrison v. Sun Printing & Publishing Assn., 164 App. Div. 737 , appeal dismissed.
(Argued January 2, 1918;
decided February 12, 1918.)
Appeal from a judgment, entered February 15, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which unanimously
p. 692
reversed an order of the court at a Trial Term, setting aside a verdict in favor of plaintiff and granting a new trial and directed reinstatement of the verdict.
Herbert H. Gibbs for appellant.
Herbert C. Smyth for respondent.

The action was for libel. A verdict was found by the jury for the plaintiff. This the trial judge set aside and directed a new trial. The Appellate Division unanimously reversed this order and reinstated the verdict. Thereupon the judgment was entered and an appeal was taken from it directly to this court. So far as the form of the appeal is concerned it is correct. (Code Civ. Pro. sec. 1336; Girling v. City of New York, 197 N. Y. 302 .) The difficulty is that this is an action for personal injuries. The judgment based on the verdict of the jury has been unanimously affirmed. As the Code stood at the time the appeal was taken, it did not lie unless upon compliance with subdivision 2 of section 191. In Girling v. City of New York the Appellate Division was not unanimous. (Charles v. Leonard, 215 N. Y. 712 .)

The appeal should be dismissed; with costs.

Hiscock, Ch. J., Chase, Hogan, Cardozo, Pound and Andrews, JJ., concur; McLaughlin, J., not sitting.

Appeal dismissed.

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