American Medicine Co. v. Keisler

The appeal is from the judgment only, and not from the order denying a motion for a new trial on the judge’s minutes. In order to bring up the case for review upon the facts there must be an appeal from the order denying the motion for a new trial.. The mere denial of a motion made upon the judge’s minutes presents no question of fact for review upon appeal from the judgment. The appeal should be from an order denying such motion, and exception taken thereto, if the facts are to be reviewed (Matthews v. Mayburg, 63 N. 7. 656). On the other hand, if it be claimed that the order denying such motion is an intermediate ordér involving the merits and affecting the judgment, the New Code requires that, before it can be reviewed upon an appeal from the judgment, it must be specified in the notice of appeal (§§ 1301, 1316). Questions of law, therefore, only are to be considered.

Defendant offered to show that the plaintiffs had recovered in another action a verdict, including a demand of some of the property named in this action. The offer was not for a recovery of the some property. There was no offer to show that satisfaction had been obtained on the judgment, or that plaintiffs had made their election by suing out execution,—Held, inadmissible (Osterhout a. Roberts, 8 Gow. 43; Livingston v. Bishop, 1 Johns. 290 ).

This action, brought to recover damages for conversion of personal property. Plaintiff recovered a verdict, upon which judgment was entered, from which defendant appeals.