Rust v. Hauselt — 69 N.Y. 485

Majority

p. 485

John C. Rust, Respondent, v. Charles Hauselt, Impleaded, etc., Appellant.

Headnote

An order of General Term reversing a judgment entered upon a decision of the court on trial without a jury, which order does not direct a new trial and upon which no judgment has been entered, is not reviewable in this court; it is not an order granting or refusing a new trial, nor is it a final judgment.

(Argued March 22, 1877;

decided May 22, 1877.)

Appeal from order of the General Term of the Superior Court of the city and county of Hew York reversing a judgment in favor of appellant, entered upon a decision of the court on trial at Special Term, but without granting a new trial.

The facts appear sufficiently in the opinion.

Lewis Sanders, for the appellant.

Joseph M. Dixon for the respondent.

The questions passed upon by the General Term are reviewable in this

p. 486

court. (Mason v. Lord, 40 N. Y., 484 ; Bradley v. Aldrich, id., 508 .)

This action was tried before the court without a jury, and the judge made findings of facts which, upon their face, disclosed no error in his conclusions of law. There were no requests to find any further facts, and but two exceptions are relied upon, viz., exceptions to the fifth and sixth findings of facts.

On appeal to the General Term the judgment was reversed. No new trial was ordered, and the order of reversal does not state that it was made upon any question of fact. I have carefully examined the case upon its merits, and have come to the conclusion that, from the manner in which it is presented to this court, no judgment can be rendered by us, consistently with established rules of practice, which would not in all probability do injustice to one side or the other. I am, therefore, of opinion that the appeal should be dismissed on the ground that it is not an appeal from an order granting or refusing a new trial, nor from a final judgment of the court below. The order appealed from is a simple order of reversal, upon which no judgment appears to have been entered. From such an order an appeal does not lie to this court.

The appeal should be dismissed, with costs.

All concur ; Andrews, J., absent.

Appeal dismissed.