Lane v. Bailey

1 Abb. Pr. 407, 45 Barb. 119, 30 How. Pr. 76

Opinion

By the Court.

Footnotes

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*—Leonard, J.

The second subdivision of section 319, gives the right of appeal from an order denying a motion for a new trial.

No qualification is imposed limiting the right to cases where the judgment has not been entered.

This subject was considered at general term in the sixth district (13 Abb. Pr., 389; S. C., 22 How. Pr., 385 ; Pumpley v. The Village of Oswego). The right to appeal was there upheld in a similar case to the present.

On the next page of thp same volume of Howard occurs the case of Soverhill v. Post, decided in the third district, where a contrary rule was held, but, as it seems to me, on very insufficient reasons.

The court consider, the appeal in the latter case as nugatory, because the judgment will not be affected by the decision on the appeal, even should the verdict be set aside.

With great respect, I differ.

Should the verdict be set aside, the special term can, on motion, vacate the judgment, as it will then have no foundation.

Where an appeal is taken from a judgment, and there has been an appeal, also, from a denial of motion for a new trial on the judge’s minutes, we think it the better course to hear both appeals argued on the appeal from the judgment.

By section 329 of the Code, all intermediate orders may be reviewed on the appeal from the judgment, and the facts, as well the law, may, under such circumstances, be reviewed.

The motion to dismiss the appeal should be denied, but without costs.

Present, Irgraham, Leonard and Barnard.