LANE against BAILEY

LANE against BAILEY. Supreme Court, First District ; General Term, November, 1865. Appeal.—Hew Tkial. An appeal from an order denying a motion for a new trial may be taken after judgment has been entered, as well as before. The case of Soverhill v. Post (22 How. Pr., 386), opposed. Where an appeal is taken from a judgment, and there has been an appeal, also, from an order denying a new trial, it is the better course to hear both appeals together. Motion to dismiss an appeal. In this action, which was brought by Robert Lane, and another, the plaintiffs recovered a verdict. The plaintiffs entered judgment upon the verdict; and the defendants, having moved for an order for a new trial upon the judge’s minutes, which was denied, appealed from the order denying it, making a case, and serving it in the usual way, but without taking any appeal from the judgment. - When the appeal came on before the general term in February, 1865, the plaintiff’s counsel moved to dismiss the appeal, as being too late after judgment; and the motion was granted, the court,per Ingraham, J., holding that a motion for a new trial on the judge’s minutes, made at the circuit, is not such a motion as requires a formal entry of an order on its denial. It is all with the trial merged in the judgment. The appeal should be from the judgment, and not from the denial of the motion by tiie judge. The appeal was accordingly dismissed with the remark that it was evident, from the papers, that the defendants had resorted to this proceeding to cure their neglect to appeal from the judgment, and they should not be allowed to do, indirectly, what the law has forbidden. The defendants applied for, and obtained leave to re-argue the motion to dismiss the appeal, and the re-argument was had at the general term in November, 1865. S. T. Freeman, for the plaintiff, respondent. T. Cronin, for the defendant, appellant. [MAJORITY — By the Court.—Leonard, J.] By the Court.—Leonard, J. The second subdivision of section 319, gives the right of appeal from an order denying a motion for a new trial. No qualification is imposed limiting the right to cases where the judgment has not been entered. This subject was considered at general term in the sixth district (13 Abb. Pr., 389; S. C., 22 How. Pr., 385 ; Pumpley v. The Village of Oswego). The right to appeal was there upheld in a similar case to the present. On the next page of thp same volume of Howard occurs the case of Soverhill v. Post, decided in the third district, where a contrary rule was held, but, as it seems to me, on very insufficient reasons. The court consider, the appeal in the latter case as nugatory, because the judgment will not be affected by the decision on the appeal, even should the verdict be set aside. With great respect, I differ. Should the verdict be set aside, the special term can, on motion, vacate the judgment, as it will then have no foundation. Where an appeal is taken from a judgment, and there has been an appeal, also, from a denial of motion for a new trial on the judge’s minutes, we think it the better course to hear both appeals argued on the appeal from the judgment. By section 329 of the Code, all intermediate orders may be reviewed on the appeal from the judgment, and the facts, as well the law, may, under such circumstances, be reviewed. The motion to dismiss the appeal should be denied, but without costs. Present, Irgraham, Leonard and Barnard.