Victory v. Foran — 56 N.Y. Super. Ct. 507

Majority

p. 507

CATHARINE VICTORY, Respondent v. BRIDGET FORAN, Appellant.

Headnote

Practice on appeal—Order appealed from must be duly entered and appear in the printed case.

In this case, although the notice of appeal states that defendant appeals from an order made after the verdict was rendered, refusing to grant a new trial, the printed case did not contain any such order.

Held, that the court will not review on appeal, an order denying a motion for a new trial, unless that order shall have been formally entered and appears in the printed case on appeal.

Before Sedgwick, Ch. J., Truax and Dugro, JJ.

Decided March 5, 1889.

Appeal from a judgment entered upon the verdict of a jury, and from an order refusing to grant a new trial, made after verdict was rendered.

G. H. & F. L. Crawford, for appellant.

James A. O'Gorman, and Christopher Fine, for respondent.

Although the notice of appeal states that the defendant appeals from the judgment and from the order refusing to grant a new trial made after the verdict was rendered, yet the case does not contain any such order.

We have frequently held that we will not review on appeal an order denying a motion for a new trial unless that order shall have been formally entered and appears in the printed case.

There was no error in the way the case was presented to the jury. In fact, there are but two exceptions in

p. 508

the case ; one on the admission of testimony; the other on the refusal to dismiss the complaint.

The first exception was not referred to by the appellant on the argument. It was not well taken because the testimony that the question brought forth tended to show in a proper way the defendant’s negligence. Nor was it error to refuse to dismiss the complaint. There was evidence that would warrant the jury in finding that the plaintiff was injured without negligence on her part through the negligence of the defendant.

While the damages seem to. be quite large we cannot say that they are so large that the jury must have been influenced by prejudice or passion in awarding them.

Judgment affirmed, with costs to the respondent.

Sedgwick, Ch. J., and Dugro, J., concurred.