3 A.D.2d 665 | N.Y. App. Div. | 1957
In an action to recover damages for injuries to person and property, the court, at the opening of the trial, made a ruling that the issue of liability should be tried first and, if the jury found for the plaintiff, the issue of damages should then be tried before the same jury. The plaintiff excepted to this ruling and thereafter moved for an order directing that his exceptions be heard in the first instance by this court. The trial court thereupon entered an order which: (a) directed that plaintiff’s exceptions taken at the trial be heard in the first instance by this court; (b) suspended the entry of judgment until this court’s determination upon such exceptions, and (c) dismissed the complaint but not on the merits and without prejudice to a retrial or other appropriate relief after the determination of this court. The parties have filed a “ case and exceptions ” in this court for determination. “ Case and exceptions ” dismissed, without costs. In the absence of a final judgment this is not a proper matter under the statute for the hearing of exceptions in the first instance by this court or for the making in this court of a motion for a new trial based on such exceptions (Civ. Prac. Act, § 550; Rules Civ. Prac., rule 220); and consequently neither the exceptions nor the motion for a new trial may be entertained by this court. It clearly appears from the “ case and exceptions ” as filed, that this court is in effect being asked to review a ruling made by the trial court during the course of the trial; that our determination will not be dispositive of the rights of either party, which are preserved by the order regardless of what our determination may be, and that our determination will be purely of an advisory nature in relation to the propriety of trying this action in two separate stages before the same jury. This court will not render advisory opinions nor will it review any proceeding the sole purpose of which is tfi