p. 370James D. Brown, Resp’t, v. James A. Simmons, App’lt.(New York Court of Common Pleas, General Term,Headnote
1. Practice—Order for new triad—Appear from—When -dismissed.On appeal to the general term of the New York common pleas from an order of the general term of the New York city court granting a new trial, the order will he dismissed when there exists any material and controverted question upon which the general term of the lower court might have granted a new trial.
When the appeal is entertained, the order will he affirmed and judgment absolute given against the appellant whenever there is in the record an ex-' ception sufficient to warrant the order for a new trial. .
3. Same—When dismissed with costs.
When leave is asked to withdraw such an appeal in good faith at or before an argument, it will he dismissed on payment of costs.
Appeal by defendant from an order of the general term of the city court affirming an order granting a motion fora new trial, made by the plaintiff on the justice’s minutes.
Two actions were brought by the plaintiff against the defendant, one on a promissory note and the other for legal services, and money paid for disbursements. In the first the defendant set up the defense of usury. In the second the defendant made a general denial.
The two actions were consolidated and were brought to-trial before Mr. Justice Nehrbas and a jury. On the trial, the defendant failed to establish the usury; and the rendering of the services, and their value, not being controverted, the only question that was before the jury was, whether the plaintiff had been employed by the defendant to render these services; the defendant claiming that, except as to one iiiem thereof, there had been no such employment. Upon this question the jury rendered their verdict in favor of the defendant. The plaintiff thereupon moved on the minutes to set the verdict aside, and for a new trial. The motion was granted on the grounds stated in the order.
J. D. Brown, resp’t in person; Geo. Norris, for app’lt.
The rule that we apply in determining whether to dismiss the appeal, or whether to give judgment absolute against the appellant, where an appeal is taken to this court from an order of the general term of the
p. 371-city court that grants a new trial, may be found in the cases of
Tinsdale v.
Murray ( 9 Daly, 446 ;
Sands v.
Crooke ( 46 N. Y., 569 ), and
Harris v.
Burdett (73 id., 136).
If the appeal is submitted to us for decision, we affirm the order, and give judgment absolute against the appellant whenever we discover in the record an exception that is sufficient to warrant the order for a new trial; and this we •do, even though the exception may not have been noticed by the city court.
But where, as in this case, the appellant discovers his mistake in appealing to this court, and at the argument or before the argument, asks permission to withdraw the appeal, we dismiss the appeal on payment of costs, where there is no doubt of the appellant’s good faith in taking the appeal. Mackay v. Lewis, 73 N. Y., 382 .
Appeal dismissed on payment of costs of appeal.
Daly, J., concurs.