Majority
p. 111(27 App. Div. 30.) ROSENQUEST et al. v. CANARY et al. (Supreme Court, Appellate Division, First Department. March 11, 1898.) Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Headnote
New Trial—Case Tried to the Court.In a case tried before the court without a jury, there is no authority for a. motion for a new trial on the minutes, and an order denying 'such a motion presents no question for review.
Appeal from trial term, New York county.
Action by J. Wesley Bosenquest and Emeline Colville against Thomas Canary and George W. Lederer. From a judgment ( 45 N. Y. Supp. 342 ) dismissing plaintiffs’ complaint on the merits, and denying a new trial on the minutes, plaintiffs appeal. Judgment reversed,, and plaintiffs appealed from order denying new trial. Dismissed.
Henry Thompson, for appellants.
David May, for respondents.
The precise question presented by the appeal-from the judgment herein was passed upon by this court adversely-
p. 112
to the respondents’ contention in giving construction to the identical lease upon which this action for rent was brought. Rosenquest v. Noble, 21 App. Div. 583 , 48 N. Y. Supp. 398 . It was held that the agreement relating to the deposit of $4,500, to be retained as liquidated damages for a breach of the covenants of the lease, would not satisfy the obligation of these defendants to pay money due under the lease as rent of the premises. The judgment must, therefore, be reversed, and a new trial ordered, with costs to appellants to abide event.
The appeal from the order denying the motion for a new trial must be dismissed. In a case tried before the court without a jury, there is no authority for a motion for a new trial on the minutes, and an order denying such a motion presents no question for review. All concur.
Cases cited
- Rosenquest v. Noble 21 App. Div. 583 p. 112