Martin v. Alabama 84 Truck Rental, Inc.

305 N.E.2d 918, 33 N.Y.2d 820, 350 N.Y.S.2d 910, 1973 N.Y. LEXIS 942

Opinion

Motion for reconsideration of motion to dismiss appeal [see 33 N Y 2d 685] granted, and upon reconsideration, appeal transferred to the Appellate Division. The Appellate Division order granting a new trial did not “ necessarily affect ” the final judgment as required to allow a direct appeal as of right from the judgment (CPLR. 5601, subd. [d]).Accordingly, the appeal should be transferred to the Appellate Division (N. Y. Const., art. VI, § 5, subd. b; see, e.g., Ryan v. Freeman, 24 N Y 2d 942; Adelman v. Adelman, 24 N Y 2d 989; see, also, 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5514.02, p. 55-92). The effect, if any, to be ascribed to the prior stipulation between the parties discontinuing the appeal to the Appellate Division, is properly a question for the Appellate Division upon the transfer.