Opinion
Argued October 8, 1900
Decided November 20, 1900
H.K. Coddington and George C. De Lacy for appellants.
Charles W. Dayton for respondent.
The question whether the verdict was contrary to the evidence was distinctly raised upon the respondent's motion for a new trial made before the trial court. An appeal was taken from the order denying that motion as well as from the judgment, and the determination of the court in denying the motion for a new trial was involved in the appeal to the Appellate Division, where the facts were reviewable in the same manner as upon an appeal from a similar judgment or order of the Supreme Court. (Code Civil Procedure, §§ 1340, 3191.) If we should now reverse the determination of the Appellate Division and affirm the judgment of the trial court, the plaintiff would have a judgment against him entered upon a verdict and affirmed by this court, without having the question whether the verdict was contrary to evidence considered, and without having the benefit of a new trial, which may have been granted by the court below upon the sole ground that the verdict was not sustained by, or was contrary to the weight of, the evidence. It is well settled by the decisions of this court that an order of the Appellate Division granting a new trial in an action tried before a jury, where there is a conflict in the evidence and the order may have been based upon the insufficiency of the evidence, is not reviewable by this court unless it appears from the record that the order denying a new trial was affirmed as to the facts or the appeal therefrom dismissed. ( Wright v. Hunter, 46 N.Y. 409; Harris v. Burdett, 73 N.Y. 136; Snebley v. Conner, 78 N.Y. 218; Kennicutt v. Parmalee, 109 N.Y. 650; Voisin v. Commercial Mut. Ins. Co., 123 N.Y. 120, 131; Peil v. Reinhart, 127 N.Y. 381, 385; Williams v. D., L. W.R.R. Co., 127 N.Y. 643; Chapman v. Comstock, 134 N.Y. 509, 512; Mickee v. W.M. R.M. Co., 144 N.Y. 613; Hoes v. Edison General Electric Co., 150 N.Y. 87.)
In view of the principle so firmly established by the authorities cited, it becomes obvious that this appeal must be dismissed unless the fact that an order was granted allowing it, changes or adds to the authority of this court or affects the manner of determining the questions involved. If the defendants had possessed the right to appeal as of course, the appeal would be dismissed. Does such an order in any way change the authority of this court or the principles to be applied by it in disposing of appeals when thus allowed? We think not. We are of the opinion that the allowance of this appeal merely placed the appellants in the same position they would have occupied if they had possessed that right without any such order, and that the question must be disposed of in the same manner. In Commercial Bank v. Sherwood ( 162 N.Y. 310, 317), where there was an allowance of an appeal under subdivision 2 of section 191 of the Code of Civil Procedure, this court said: "The permission to appeal, under subdivision 2 of section 191, in no way enlarged the jurisdiction of this court with respect to the questions that may be reviewed by it upon a hearing of the appeal," citing Reed v. McCord ( 160 N.Y. 330); Young v. Fox ( 155 N.Y. 615); Grannan v. Westchester Racing Assn. ( 153 N.Y. 449); Mundt v. Glokner ( 160 N.Y. 571). We think that the allowance of an appeal by the Appellate Division does not require this court to adopt any different rule in determining the questions which are thus brought before it from that enforced in ordinary cases where no such allowance is necessary.
The appeal should be dismissed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN and LANDON, JJ., concur.
Appeal dismissed.