Ahern v. Standard Life Insurance

9 Abb. Pr. 69, 40 How. Pr. 190

Opinion

Freedman, J.

In consequence of the omission of the cases arising under subdivision 2 of section 349, from the exceptions contained in subdivision 5 of section 307 of the Code, as it now stands, the same costs may be taxed on appeal from an order denying motion for new trial, as upon appeal from the judgment. Although in practice both appeals are brought to a hearing at the same time and place, and upon one set of papers, they are nevertheless, entirely distinct from each other. An appeal from the judgment, after trial by jury, presents only questions of law; but an appeal from the order denying motion for a new trial, enables the appellant to obtain a review of the questions of fact as well as of law. Such combined appeal calls for a more full preparation of the appeal papers, imposes vastly greater labors upon the counsel for the respondent, and entitles the appellant to a more thorough consideration by the appellate court of the whole case, than by an appeal from the judgment alone.

The clerk, therefore, was right in taxing the costs of both appeals.