John Irlbacker et al., Respondents, v. Philip W. Roth, Appellant

John Irlbacker et al., Respondents, v. Philip W. Roth, Appellant. Reported below, 25 App. Div. 290. (Submitted March 14, 1898; decided March 22, 1898.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 14, 1898, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The motion was made upon the ground that the Appellate Division unanimously decided that there was evidence supporting and tending to sustain the findings of fact of the referee, and that no question of law was raised in the action. Warren F. Miller for motion. Shire <& Jellenelc opposed. [MAJORITY] Motion denied, with ten dollars costs, upon the ground that it does not appear, either by the judgment or order of the Appellate Division, that the decision of that court was unanimous, with leave to renew upon payment of such costs, provided the record is so amended as to show that the judgment appealed from was rendered by the unanimous vote of all the judges who took part in the decision. (Kaplan v. N. Y. Biscuit Co., 151 N. Y. 171.)