Frank Gross, Plaintiff, v. Kathairo Chemical Company, Defendant

Frank Gross, Plaintiff, v. Kathairo Chemical Company, Defendant. Second Department, December 2, 1908. Appeal — form of order of reversal. An order reversing a judgment entered on a verdict will not be amended so as to read “ reversed upon the law and not upon the facts,” for there is no such form of reversal in any case, and the amendment would not change the status of an appeal to the Court of Appeals. Motion to amend an order of the Appellate Division reversing a judgment in favor of the plaintiff and an order denying a motion for a new trial made upon the minutes. (See 127 App. Div. 165.) Jones, McKinny & Steinbrink, for the motion. Mayer & Gilbert, opposed. [MAJORITY — Gaynor, J.:] Gaynor, J.: We reversed a judgment for the plaintiff for damages for breach of a contract entered on a verdict, and the order denying the motion on the minutes for a new trial. This motion is by the plaintiff to have our order of reversal amended so as to read “ reversed upon the law and not upon the facts ”. There is no such form of reversal in any case, and it would serve no purpose to grant the motion. It would in no way affect the status of the appeal to the Court of Appeals, but would be useless verbiage. The motion is made out of an entire lack of knowledge on the subject, which could only result from a failure to read the statute which is applicable, although we have been at much pains to point out the provisions of such statute and the practice in respect of orders of reversal (Brennan v. City of New York, 123 App. Div. 7; Duryea v. Zimmerman, Id. 805). The motion is denied with costs. Tenes, Hooker, Rich and Miller, JJ., concurred. Motion denied, with costs.