Bennett v. City of Brooklyn

19 How. Pr. 310

• Court: New York Supreme Court
• Decided: May 15, 1860
• Status: Published

Opinion

By the court—Emott, Justice.

We think this decision was erroneous. We have held, in Moore agt. Wood, decided at the present term, distinctly and after argument, that an appeal will lie to this court, from an order made by the city court of Brooklyn, before a judgment in the action, when such an order is in its nature appealable, that is where it involves the merits and necessarily affects the judgment. We also held that this latter phrase is to be read as meaning which will necessarily affect the judgment, and refering to future as well as existing judgments.

An order granting a new trial obviously involves the merits, and we constantly entertain appeals from such orders, made for various reasons. The application in the city court in the present case was, it is true, addressed to the discretion of the court; but to a legal discretion limited and controlled by legal rules, and which is therefore open to review and examination by those rules upon an appeal. We have heretofore entertained appeals from such orders as well from the city court as in this court, and in Thomas agt. Monas, decided in May, 1858, we entertained such an appeal against a similar objection based upon the character of the order, and reversed an order granting a new trial on account of newly discovered evidence, because that evidence appeared to have been merely cumulative.

The order dismissing this appeal must be reversed, with $10 costs.