Gelder v. International Ore Treating Co. — 135 N.Y.S. 406

Majority

p. 406

GELDER v. INTERNATIONAL ORE TREATING CO.

(Supreme Court, Appellate Division, First Department.

May 24, 1912.)

Headnote

Appeal and Error (§ 1199*)—Reversal—Proceedings Below.

Where the court on appeal set aside a verdict and ordered a new trial, the foundation of the judgment was taken away; and a motion to vacate was improperly denied.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4674-4676; Dec. Dig. § 1199.*]

Appeal from Special Term, New York County.

Action by Barney Gelder against the International Ore Treating Company. Prom an order denying a motion to vacate judgment after an order of the Appellate Division, setting aside a verdict and ordering a new trial, defendant appeals. Reversed, and motion granted.

See, also, 135 N. Y. Supp. 1113 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, CLARKE, and DOWLING, JJ.

Louis Cohn, for appellant.

Jules H. Baer, for respondent.

By the order of this court setting aside the verdict herein and ordering a new trial the foundation of the judgment was taken away. The issues raised by the pleading are now undisposed of, and, until such issues are tried and determined, there can be no judgment in the action.

The order is therefore reversed, with $10 costs and disbursements, and the motion to vacate the judgment granted.