Taylor v. . Smith

| NY | Nov 13, 1900

The jury having rendered a verdict in favor of the plaintiff on the trial of this action, defendant's counsel moved the court upon its minutes for a new trial on the grounds specified in section 999 of the Code, which motion was denied and an order to that effect entered. Subsequently judgment was entered, from which the defendant appealed to the Appellate Division, stating in the notice of appeal his intention "to bring up for review before this court the order denying appellant's motion for a new trial." The plaintiff moved that court to strike from the notice of appeal the statement therein of defendant's intention to bring up for review the order denying the motion for a new trial, and the court granted the motion, holding that the order was not intermediate within the meaning of section 1316 of the Code. In thus holding the court erred. (Fox v. Matthiessen, 155 N.Y. 177" court="NY" date_filed="1898-03-01" href="https://app.midpage.ai/document/fox-v--matthiessen-3582023?utm_source=webapp" opinion_id="3582023">155 N.Y. 177. )

It follows that the record presented questions which the Appellate Division should have passed upon and did not, and hence the order amending the notice of appeal should be reversed and the case remitted to the Appellate Division of the fourth department to consider the questions brought up by the notice of appeal that were not passed upon by that court.

This practice is sanctioned by Matter of De Camp (151 N.Y. 557" court="NY" date_filed="1897-02-02" href="https://app.midpage.ai/document/matter-of-de-camp-3600427?utm_source=webapp" opinion_id="3600427">151 N.Y. 557) and Fox v. Matthiessen (supra).

The order should be reversed, with costs, and the record remitted to the Appellate Division.

GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN and WERNER, JJ., concur.

Order reversed, etc.