22 How. Pr. 385 | N.Y. Sup. Ct. | 1862
An appeal lies to the general term from an order made at a special term, “ when it grants or refuses a new trial.” (Code, § 349, sub. 2.) The order in this case refusing a new trial, was regularly made before the judgment was entered; and we think an appeal lies from the order to the general term, notwithstanding the entry of the judgment before the same was taken. (See 19 How. Pr. R., 515.) The case of Jackson agt. Fassett, (33 Barb., 645,) and others like it, only show that a motion for a new trial on a case cannot be made at a special term after judgment has been entered unconditionally in the action. Thosei decisions are not in point upon this motion.
The motion to dismiss the appeal is therefore denied, with $10 costs to abide the event of the action.