Kelsey v. Sargent

1 Silv. Ct. App. 325, 5 N.Y. St. Rep. 616

Opinion

Per Curiam.

The judgment rendered at special term made a reference necessary, therefore it was not final, but interlocutory. Barker v. White, 58 N. Y. 204.

An appeal, however, was taken to the general term, and upon exceptions the defendant also moved that court for a new trial under section 1001 of the Code. The judgment was affirmed and the motion for a new trial denied. One order embraced both decisions, and from the whole of that order the defendant appealed.

So far as the appeal affects the order denying a new trial, it was well taken (§ 190, subd. 2; Raynor v. Raynor, 94 N. Y. 248, 251), and as the motion to dismiss relates to the whole appeal, and not a part only, it should be denied, and as the plaintiff asks for too much, he should pay costs.

Motion denied, with $10 costs.

All concur.