Opinion
Argued April 26, 1933
Decided May 23, 1933
Appeal from the Supreme Court, Appellate Division, Second Department.
Theodore H. Lord, James B. Henney and Daniel R. Harvey for appellant.
Benjamin R. Leinhardt for respondent.
Although we have held repeatedly that any modification by the Appellate Division of the judgment or order appealed from gives the right of appeal under Civil Practice Act, section 588, subdivision 1, the rule seems to be established that an unanimous order of the Appellate Division which reverses an order of the Trial Term granting a new trial and reinstates the verdict is a unanimous affirmance of the judgment based on the verdict of the jury although no judgment was entered thereon, and that leave to appeal must be obtained. ( Garrison v. Sun Printing Pub. Assn., 222 N.Y. 691.)
We reiterated this rule in Markiewicz v. Thompson ( 246 N.Y. 235) where it is said: "By the settled practice of this court, a judgment of the Appellate Division unanimously reversing an order of the trial judge for a new trial, and reinstating the verdict, is tantamount to the unanimous affirmance of the judgment, and an appeal therefrom will be dismissed if taken without leave."
The appeal should, therefore, be dismissed, with costs.
CRANE, LEHMAN, KELLOGG, O'BRIEN and CROUCH, JJ., concur; HUBBS, J., not sitting.
Appeal dismissed.