Kennicutt v. Parmalee — 15 N.Y. St. Rep. 515

Majority

p. 515

Anson C. Kennicutt, App’lt, v. Joshua Parmalee, Resp’t.^[1]

(Court of Appeals,

Filed April 24, 1888.)

Headnote

1. Practice—Appeal—What orders appealable to court op appeals.

In an action tried before a jury, which rendered a verdict in favor of the plaintiff, the defendant’s motion for a new trial upon the opinion of the court, was granted. It did not appear that this motion for a new trial was based solely upon exception to or question^ of law. Held, that such an appeal does not bring anything for review to the court of appeals.

2. Same—When order granting new trial appirmed on appeal to court op appeals.

Upon the appeal from such an order, as it did not appear that the new trial was granted upon the facts, the practice is to affirm the order. Citing SneUey v. Conner, 78 N. Y., 218 .

Appeal from an order of the supreme court, general term, fifth department, affirming an order of the circuit, granting a new trial.

B. F. Congdon, for app’lt; W. H. Henderson, for resp’t.

—This action was tried before a jury, and they rendered a verdict in favor of the plaintiff. The defendant then made a motion for a new trial upon the minutes of the court and an order was made setting aside the verdict and granting a new trial. From this order the plaintiff has brought an appeal stipulating for judgment absolute in favor of the defendant, in case the order should be affirmed.

There were issues of fact tried and questions of fact submitted to the jury. The motion for a new trial does not appear to have been based solely upon exceptions or questions of law, and hence the motion may have been granted by the trial judge in the exercise of his discretion upon the facts. That such an appeal does not bring anything for review to this court, has been settled by numerous decisions. Wright v. Hunter, 46 N. Y., 409 ; Sands v. Crooke, id., 564; Dickson v. Broadway and Seventh Avenue R. R. Co., 47 id., 507; Downing v. Kelley, 48 id., 433; Courtney v. Baker, 60 id., 1; Wagner v. L. I. R. R. Co., 70 id., 614; Harris v. Burdett, 73 id., 136; Snebley v. Conner, 78 id., 218; Bronk v. N. Y. and N. H. R. R. Co., 95 id., 656; People v. Poucher 99 id., 610.

Instead of dismissing this appeal, as we have usually done in such cases, the order should be affirmed, for reasons stated in Snebley v Conner. We reach this conclusion the more readily as we are inclined to the opinion that the court below made a proper disposition of the case.

Order affirmed and judgment absolute ordered against the plaintiff, with costs.

All concur.