Dart v. Gillies

Headnote

Appeal—questions of fact, how - brought up for review—entry on cleric's minutes, when deemed an order denying motion for new trial.

This is an appeal from a judgment in favor of plaintiff, and also from an order denying defendant’s motion for a new trial made on the judge’s minutes.

The notice of appeal in the case at bar specifies that the defendants appeal from the judgment and also from the order denying motion for new trial upon the minutes, but no formal order denying said motion was ever entered. An entry appears in the clerk’s minutes noting the fact of the denial of the motion.

The court at General Term said : “ Defendants’ exception to the denial of the motion for a new trial upon the minutes presents no question of fact for review. The only mode for reviewing that decision upon the facts is by an appeal from the order denying the motion (Gregg v. Howe, 37 N. Y. Super. Ct. 420 ; Matthews v. Meyberg, 63 N. Y. 656 ). For the purpose of such an appeal it was said in Gregg n. Howe, that an order must be entered. If the entry upon the. clerk’s minutes be treated as an order, as was done in. Alfaro v. Davidson ( 39 N. Y Super. Ct. 463 ), it should! not be disturbed upon a question of fact, because no. such ground was assigned for the motion, and no mo-, tion for the direction of a verdict had been previously, madé, and also because, at the close of the trial, the. case, considered as a whole, was one which had; to.be. submitted to the jury.”