180 A.D. 157 | N.Y. App. Div. | 1917
This is an action for malicious prosecution against three defendants. At the trial the jury rendered a verdict in favor of one defendant and reported a disagreement as to the other two, who are the appellants herein. They immediately moved to dismiss the complaint on grounds stated by them in making similar motions during the trial at the close of plaintiff’s evidence, and again at the close of all the evidence, and on the additional ground that on the complaint and verdict in favor of the other defendant, no damages could be recovered against them, it being argued that a verdict against them and in favor of the other defendant would be inconsistent. This motion having been denied, the determination of the court in disposing of the motion was incorporated in the form of an order, and from such alleged order this appeal has been taken.
The determination in question is not an order in the sense in which that term is used in the Code of Civil Procedure. Sections 767 to 779, inclusive, constituting title 5 of chapter 8 of the Code of Civil Procedure, apply to “ motions and orders generally.” Section 767 is as follows: “ Definition and form of an order. A direction of a court or judge, made, as prescribed in this act, in an action or special proceeding, must be in writing, unless otherwise specified in the particular case. Such a direction, unless it is contained in a judgment)
The appeal should be dismissed, with ten dollars costs and disbursements.
All concurred.
Appeal dismissed, with ten dollars costs and disbursements.