Bronk v. New York & New Haven Railroad

Headnote

An order of General Term granting a new trial in a case tried by a jury is not appealable to this court, where a material and controverted question of fact was involved, upon which the General Term might have granted the new trial; and, although both parties desire it, such an appeal will not be entertained.

The mem. of opinion of which the following is a copy states the nature of the appeal and the material facts.

“ Upon the trial a nonsuit was denied and the case submitted to the jury as one in which a verdict might be had according to the estimation of the jury of certain facts in evidence. They decided in favor of the plaintiff. A motion was then made for a new trial, upon the judge’s minutes, and it being denied, the defendant after judgment appealed to the General Term both from the order and the j udgment, where the judgment was reversed and a new trial ordered.

In such a case it has been often held that no appeal lies to this court ( Wright v. Hunter, 46 N. Y. 409 ; Sands v. Qrooke, id. 564; Hickson v. Hway and Seventh Ave. JR. H. Co., 47 id. 507; Harris v. Burdett, 73 id. 136; Whitson v. Havid, 81 id 645), and although both parties desire otherwise, we must follow these decisions and dismiss the appeal now before us. It is not suggested by the plaintiff that the question submitted to the jury was immaterial, nor that it should have been decided in his favor by the court as matter of law. Such claim would be untenable. The evidence was at least not wholly in his favor, and at the trial the defendant insisted that no case had been made out and that a nonsuit should have been granted. The case is one, therefore, where controverted and material questions of fact are involved, and for their review by this court no provision has been made. In Harris v. Burdett (supra) two cases are pointed out in which after trial by jury an appeal from the order of the General Term ■ may be had. The present is not one of them. In order, however, that the

plaintiff may take such course in the court below as he may think proper to preserve his rights, the appeal may be dismissed, but it must be with costs.”