Eunice Niemoller, Respondent, v. Naomi Duncombe, Appellant

Eunice Niemoller, Respondent, v. Naomi Duncombe, Appellant. Reported below, 59 App. Div. 614. (Argued January 6, 1903; decided January 14, 1902.) Motion to dismiss an appeal from a judgment entered March 19, 1901, upon an order of the Appellate Division' of the Supreme Court in the second judical department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment for the plaintiff upon a verdict which had been set aside by the trial court. The motion was made upon the grounds that: 1. The Court of Appeals has no jurisdiction to entertain the appeal, it being in effect a unanimous decision of the Appellate Division that there was evidence to support or tending to support a verdict not directed by the court. 2. The Court of Appeals has no jurisdiction to review the order of reversal as amended, as to the facts, the evidence ■ being conflicting, and the reversal being upon .questions of fact and law. 3. There is no question of law involved in the appeal. The question of law attempted to be raised, that there was a failure of proof at the trial, in the face of conflicting evidence, cannot, since January 1,1896, be raised in this court, the parties having consented to proceed under section 1187 of the Code of Civil' Procedure. 4. The Appellate Division pursuant to section 1187 of the Code of Civil Procedure directed judgment for plaintiff on the verdict of the jury, and respondent below and appellant here made no application for a new trial to the trial justice or to the Appellate Division, and no order granting or refusing such new trial was made. 5. The defendant did not appeal from the ■ judgment of March 19, 1901, to the Appellate Division, after an extra allowance had been granted by the trial justice below, which was inserted' in said judgment, but defendant appealed from said judgment directly to the Oourt of Appeals. 6. Defendant did not appeal to the Court of Appeals from the order of reversal made by the Appellate Division, and'a mere recital in his notice of appeal that he intends to review said order is not sufficient. William L. Snyder fdr motion. Roger M. Sherman opposed. [MAJORITY] Motion denied, with ten dollars costs.