Duane v. Northern Railroad — 3 N.Y. 545

Majority

p. 545

Duane vs. The Northern Railroad Company.

Headnote

An order of the supreme court, made at a general term, reversing a judgment rendered at the circuit, before a single justice of that court, and awarding a new trial j is not a judgment within the meaning of the code, and therefore is not appealable to this court.

Duane sued the Railroad Company under the code, and at the circuit there was a verdict and judgment for the defendants. The plaintiff appealed to the supreme court in general term, where the judgment was reversed, and a new trial ordered The defendants then appealed to this court.

G. F. Comstock, for respondents,

moved to dismiss the appeal, on the ground that the judgment was not final, and there fore an appeal would not lie. He cited the code, §§ 11,245, 280 281, 327, 328.

N. Hill, Jr. for appellant,

cited the code, §§ 264, 265, 348, 530, 11; Van Santvoord v. Tousey, ( 6 Hill, 157 ;) Jackson v. Walker, (id. 261.)

There may be an appeal from “ a judgment,” [Code, § 11,) which, in the language of the code, “is the final determination of the rights of the parties in an action.” (§ 245.) We think this is not such a final judgment as comes within the definition.

Motion granted.