Majority
p. 993(175 App. Div. 884) SKINNER v. HAMILTON. (Supreme Court, Appellate Division, First Department. October 20, 1916.) Argued before CLARKE, P. J., and McLAUGHLIN, SCOTT, DOWLING, and SMITH, JJ.
Headnote
Judgment <§=338—Vacation—Authority oj? Court.Where a trial judge erred in directing a, verdict for defendant instead of dismissing, the complaint, plaintiff’s remedy was by appeal and not by motion before another justice sitting in Special Term to vacate the judgment and order a new trial, and the granting of such a motion was error.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 721; Dec. Dig. <§=338.]
<@^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Trial Term, New York County.
Action by Laura A. Skinner against Cornelius C. Hamilton. From an order vacating a judgment for defendant and restoring the case to the calendar, defendant appeals. Order reversed, and motion to vacate denied.
J. Franklin Tausch, of New York City, for appellant.
Alexander Thain, of New York City, for respondent.
The order appealed from was clearly unauthorized. If the trial judge erred in directing a verdict for defendant instead of dismissing the complaint (a question which we do not decide and cannot decide upon the record before us), the plaintiff’s remedy was by appeal and not by a motion before another justice, sitting in Special Term, to vacate the judgment and order a new trial. The granting of such a motion was error.
Order appealed from reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. Order filed. All concur.