Kelsey v. Sargent — 5 N.Y. St. Rep. 616

Majority

p. 616

Edward J. Kelsey, v. James Sargent.^[1]

(Court of Appeals,

Filed January 25, 1887.)

Headnote

1. Judgment — Rendering a ¡reference necessary is interlocutory. A judgment rendering a reference necessary is interlocutory, not final.

2. Appeal — Order denying new trial appeal arle — Code Civ. Pro., § 190, subd. 2.

Prom such a judgment rendered hy a special term an appeal was taken to the general term and the defendant also moved for a new trial upon exceptions under Code Civ. Pro., § 1001. Held, that under Code Civ. Pro., § 190, suhd. 2, the appeal was well taken so far as it affected an order denying the motion for a new trial.

3. Same — When in part well taken, motion to dismiss as a whole will BE DENIED.

Held, that the appeal being in part well taken, a motion to dismiss it as % whole should be denied.

Motion to dismiss an appeal from a judgment of tbe supreme court, general term, fifth department.

Theodore Bacon, for the motion; J. & Q. Van Voorhis, opposed.

Tbe judgment rendered at special term made a reference necessary, therefore it was not final, but interlocutory. Barker v. White, 58 N. Y., 204 .

An appeal, however, was taken to tbe general term, and upon exceptions the defendant also moved that court for a new trial under section 1001 of tbe Code. Tbe judgment was affirmed and tbe motion for a new trial denied. One order embraced both decisions, and from the whole of that order tbe defendant appealed.

So far as tbe appeal affects tbe order denying a new trial, it was well taken (§ 190, subd. 2; Raynor v. Raynor, 94 N. Y., 248 , 251,) and as tbe motion to dismiss relates to tbe whole appeal, and not a part only, it should be denied, and as tbe plaintiff asks for too much, be should pay costs.

Motion denied, with $10 costs.

All concur.