150 N.Y. 276 | NY | 1896
This action was brought to recover damages for personal injuries. The trial resulted in a verdict in favor of the plaintiff, and the judgment entered thereon has been affirmed by the unanimous decision of the Appellate Division. That court rendered its decision April 18th, 1896, but no judgment was entered thereon until May 25th, 1896. On the *278 12th day of May, 1896, chapter 559 of the Laws of 1896 was signed by the governor and under its provisions went into immediate effect. It amended section 191 of the Code of Civil Procedure so as to provide that "no appeal shall be taken to said court from a judgment of affirmance hereafter rendered in an action to recover damages for a personal injury * * * when the decision of the Appellate Division of the Supreme Court is unanimous, unless such Appellate Division shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals."
It is now urged that the provisions of this act do not apply to the appeal pending herein, for the reason that the decision of the Appellate Division was rendered before the act went into effect; but this view we are unable to adopt. The decision, or the memorandum of decision, filed by the Appellate Division is not a judgment. "A judgment of affirmance hereafter rendered," mentioned in the provisions of the act, has reference to a judgment of affirmance entered upon the decision of the Appellate Division, and inasmuch as the judgment in this case was not entered until after the act in question became a law, its provisions must control.
It is also urged that a judgment may under the directions of the court be entered nunc pro tunc as of the term and time of the rendering of the decision. However that may be is at this time unimportant, for no such judgment has in this case been entered.
The question involved in this motion has been recently disposed of in this court in the case of Croveno v. The Atlantic AvenueRailroad Company of Brooklyn,* in which case the provisions of the act have been fully discussed.
The motion to dismiss the appeal must be granted, but, under the circumstances, without costs to either party.
All concur.
Motion granted.
