157 N.Y.S. 919 | N.Y. App. Div. | 1916
The granting of the motion, or the decision of this appeal, cannot in any way affect the substantial rights of the parties. The question involved is one of technicality rather than substance.
The action, tried before Mr. Justice Cochrane and a jury, resulted in a verdict for the plaintiff. The defendant made a motion for a new trial upon the minutes, “ and the court entertained the motion and reserved decision upon the motion, and directed that all proceedings upon the verdict be postponed and held in abeyance until the court should either orally hear counsel or receive their briefs after the stenographer’s minutes had been transcribed.” Before the motion was submitted to the justice for decision he was designated by the Governor as a justice of the Appellate Division, and thereby became incompetent to hear the motion or to give further attention to the case. Thereupon the plaintiff caused judgment to he entered upon the verdict against the defendant, with costs. The stay was a mere incident to the motion. If the motion went down the stay fell with it and the judgment was properly entered. The order appealed from vacating the judgment is, therefore, a determination that the motion and stay still survive.
All concurred; Cochrane, J., not sitting.
Order affirmed, with ten dollars costs and disbursements, with permission to either party to take such action with reference to the existing verdict or the pending motion for a new trial as may be proper.