Godowitz v. Gladener — 136 N.Y.S. 269

Majority

p. 269

GODOWITZ v. GLADENER.

(Supreme Court, Equity Term, Erie County.

June 21, 1912.)

Headnote

Courts (§ 190*)—Buffalo City Court—Nonsuit—New Trial.

Under Buffalo City Court Act, § 47, authorizing the granting of a new trial after verdict, the court granting a nonsuit may not grant a new trial; but plaintiff must either appeal from the judgment or begin his action anew, and he cannot appeal from an order denying a new trial after nonsuit, notwithstanding section 55, authorizing appeals from orders affecting substantial rights.

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]

Appeal from City Court of Buffalo.

Action by Abraham J. Godowitz against Emil Gladener. From an order of the Buffalo City Court, denying a new trial after nonsuit, plaintiff appeals.

Dismissed.

Gordon E. Matthews, for appellant.

Sundel J. Holender, for appellee.

This is an appeal from the order "of the trial judge of the City Court of Buffalo, denying the plaintiff’s motion for a new trial, after nonsuit at close of plaintiff’s case, on trial in that court.

There is no authority for this appeal. Section 47 of the City Court Act authorizes the granting of a new trial by the trial judge- after verdict in that court, and not otherwise. A nonsuit having been granted, the trial judge has no further control of the case, except to direct judgment on the nonsuit. A motion for a new trial is of no avail, and the plaintiff is left to his remedy, either by appeal from the judgment, or by beginning his action over again. Section 55 of the City Court Act, providing for appeals in civil causes from judgments or final orders or orders affecting substantial rights, is of no avail.

The appeal is dismissed.