Miller v. Eagle Life & Health Insurance

3 E.D. Smith 184

Opinion

By the Court. Ingraham, First J.

Our practice always has been, where a judgment has been opened and a new trial ordered, but the judgment allowed to stand as security, to require anew judgment tobe entered for the amount recovered on the second trial without reference to the previous judgment. Such, however, is not the present case. The plaintiff having recovered a verdict, entered up his judgment, which the defendants moved to set aside. This motion was denied, but the notice of entry of judgment was set aside.

The defendant moved for a new trial; this motion was denied, and an appeal from such motion was made to the general term. On the hearing of such appeal, the order at special term was affirmed.

The order at general term on that appeal should have stopped here, but inadvertently it was further ordered that the judgment at special term should be affirmed. That part of the entry was erroneous, as no such judgment was the subject of the appeal. The appeal was merely from the denial by the. judge, at special term of. a motion for a new trial. As the judgment had not been appealed from, there was no propriety in affirming it, and we should have properly corrected that error had a motion for that purpose been made to the court.

The order made at special term, in effect, produces the same result, so far as to vacate the judgment of affirmance thereupon entered. It was not necessary in that order to direct a new judgment of affirmance to be entered. If that is necessary, it can only be done on appeal to the general term. As no new notice of the entry of judgment had been served, the defendant is not too late to appeal to the general term and then to the Court of Appeals.

The first error in the entry of the decision of the court at general term, which has led to the subsequent errors in this matter, should be corrected, and with a view of relieving the case from all difficulty on that point, it is ordered that so much of the order entered 4th February, 1854, as directs the judgment at special term to be affirmed, be vacated; that the portion of the order at special term made on the 4th May, 1854, which directs a new judgment of affirmance to be entered up, be vacated, and that the residue of the said order vacating the judgment of affirmance, entered on the 7th day of February, 1854, be affirmed; that the plaintiff be at liberty to vacate the judgment heretofore entered by him and enter a new judgment for the amount recovered and costs, within ten days from the entry of this order, or may proceed to give a new notice of entry of the said judgment, as he shall be advised, in lieu of the notice of entry of judgment which was ordered to be stricken out by the order of 27th December, 1852.

Ordered accordingly.