It is quite clear that the order of the General Term is not appealable. The defendant by its appeal to the General Term was entitled to have that court pass upon the facts and dispose of the appeal from the order denying a new trial upon the minutes. The statement in the order of the General Term, that the reversal was for errors of law only and not for any error of fact, does not show that the court had considered the facts. The case falls within the authority of Harris v. Burdett (73 N.Y. 136); where the appeal to the General Term had been, as in this case, from the order denying a new trial and also from the judgment, in a case tried before a jury. There the General Term reversed the judgment and ordered a new trial. RAPALLO, J., delivering the opinion of the court, said: "Assuming that the court did actually grant the new trial on a question of law, and that this can be made conclusively to appear; yet, if the case came before the General Term in such form, and the character of the evidence was such, that a new trial might have been granted on questions of fact, the order is not appealable to this court and should not be. To hold otherwise might result in entirely depriving the party, against whom the judgment was rendered, of the review at General Term upon the facts,
to which the law entitles him." The learned judge goes on to illustrate the result, if this court should differ with the General Term upon the question of law. He says: "If we should reverse the order, the consequence would be an affirmance of the judgment entered on the verdict, and in that event the defendants would have a final judgment against them * * * without having had any review of the verdict by the General Term upon the evidence, notwithstanding that the law gave them the right to such review, and that they had taken all the steps required to obtain it. * * * By the appeal from the order denying the motion for a new trial on the minutes, the questions of fact were brought legitimately before the General Term, and it must be presumed that it would have passed upon them, had it not been of opinion that the point of law required a reversal of the judgment."
The doctrine in Harris v. Burdett has been continuously adhered to in the decisions of this court and was subject to review as late as in Chapman v. Comstock (134 N.Y. 509); where Judge HAIGHT, in the second division of this court, speaking of the result of a reversal by the General Term and the consequent affirmance of the judgment of the trial court, said: "The defendant would have a judgment against him, entered upon a verdict and affirmed in the court of last resort, without having his question considered as to whether the verdict was against the weight of evidence."
In order that a defeated party at the General Term, in a case like the present one, shall be heard upon an appeal here, it must appear in the order of the General Term that the order denying the new trial was passed upon and disposed of by an affirmance, or the appeal therefrom dismissed, as the case might be; thus concluding the appellant upon all questions, save those of law, raised by the exceptions in the case.
The appeal should be dismissed, with costs.
All concur, except PECKHAM, J., not sitting.
Appeal dismissed.