Coleman v. Pleystead — 40 N.Y. 341

Majority

p. 341

Ellsworth S. Coleman and Wife, Respondents, v. John Pleystead, Appellant.

Headnote

From a judgment- entered up on a verdict for the plaintiff, where a motion for a new trial on a case and exceptions has been previously made by the defendant at Special Term, and upon appeal by him from the order of the Special Term denying that motion to the General Term, the latter tribunal has rendered its decision, in these words: “ Hew trial denied and the judgment entered recites the motion for a new trial at Special Term, the denial of that motion, the appeal to the General Term, and the affirmance there of the order denying a new trial, no appeal lies to this court.

Bergen r>. Bradley (36 If. T. 316) followed.

(Decided March 20th, 1869.)

Action of slander for words spoken by defendant, of plaintiff, Sarah Coleman.

After a verdict for the plaintiff, a motion was made at Special Term by defendants for a new trial on case and exceptions, which was denied. Defendants appealed to the General Term. After hearing at General Term, the court made its decision, in these words: “ New trial denied.” The plaintiffs then entered judgment in the action. In the judgment is recited the finding of the verdict; that no judgment had been entered; that the defendants had moved for a new trial at Special Term, and that motion was denied; the appeal to the

p. 342

General Term, and that the order denying a new trial was there, in all things, affirmed. The defendants appeal from the judgment to this court.

If the opinion of JusticeBacoh, in the case of Bergen v. Bradley and others (36 N. Y. R, 316), as to an appeal, is to be regarded as the decision of this court, it is decisive of this ease. As to the appeal, this case is in precisely the condition that was.

It is clear, fi’om that opinion, that this action is not before this court in such a form as to admit of review.

There is nothing shown by the report of that case, that on that question it was not the opinion of the court. It must be so regarded. In accordance therewith, this appeal should be dismissed with costs.

Appeal dismissed.

D. B. JProsser, for respondents.

D. J. BunderUn, for appellant.