Evans and others v. Millard and others

Evans and others v. Millard and others. An order of the Supreme Court, vacating a judgment in an action to recovei the possession of land, and granting a new trial upon payment of such judgment, under the provisions (2 B. S., 309) respecting new trials in ejectment, is not the subject of appeal to this court. Appeal from an order of the Supreme Court. The plaintiffs brought an action to recover the possession of land in the city of Buffalo. It was tried at the Erie circuit, in October, 1854, when the defendants had a verdict and judgment. The plaintiffs, after offering to pay the amount of the judgment, applied to the Supreme Court for a new-trial under section thirty-seven, title one, chapter five, part three of the Revised Statutes (vol. 2, _p. 309), respecting new trials in the action of ejectment. The motion was opposed upon the ground, among others, that the provisions allowing new trials, as of course, in the action of ejectment, are not in force under the Code of Procedure. The Supreme Court at special term made an order that the judgment be vacated and a new trial granted, upon the payment of the amount recovered in such judgment with interest. This order was, upon appeal, affirmed by the Supreme Court, at general term in the eighth district, and the plaintiffs appealed to this court. Nicholas Hill, for the appellants. Asher P. Nichols, for the respondents. [MAJORITY — Johnson, Ch. J.] Johnson, Ch. J. It is entirely clear that this appeal $an-not be sustained. It is not an appeal from a judgment, but from an order. It therefore is not embraced by the first subdivision of section eleven of the Code. The order does not in effect determine the action; on the contrary, it allows the action to proceed, without professing to touch, by decision, the merits. The second subdivision, therefore, does not reach it. NTor is it a final order, affecting a substantial right, made upon a summary application in an action after judgment under the third subdivision. It is not final, but directs a new trial. The appeal must therefore be dismissed. All the judges concurring, Appeal dismissed