
    Isaac R. Pharis v. R. Nelson Gere.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Practice—Appeal—When jugdment of reversal can be reviewed —Code Civ. Pbo., §§ 190-1318.
    Where judgment was reversed after verdict and an appeal was taken to the general term, and the judgment was there reversed and an order made awarding a new trial, and from that decision an appeal was taken to the court of appeals, it was objected that no appeal would lie from the decision of the general term, because it was an interlocutory and not a final judgment, the original final judgment having been destroyed by reversal. Held, that while an appeal cannot be taken to * the court of appeals from the mere judgment of reversal where it is accompanied by an order for a new trial, there can he an appeal from the order and on appeal the judgment of reversal can he reviewed.
    S. Jurisdiction—Appeal—When appeal from general term not considered.
    To give this court jurisdiction to review a decision of the general term reversing a judgment and granting a new trial in an action tried by a jury, - the general term order must show facts conferring the jurisdiction. It is sufficient to render a consideration of the appeal impossible that the general term may have reversed upon a question of fact. <
    Appeal from order of the supreme court, general term, fourth department, reversing a judgment in favor of the plaintiff entered upon a verdict rendered by a jury at circuit.
    
      George F. Comstock, for motion; Louis Marshall, opposed.
    
      
       See 11 N. Y. State Rep., 393.
    
   Finch, J.

This is a motion for a reargument, and is supported by briefs which cover two hundred and eighty-nine printed pages, or more than forty times the length of the opinion which they criticize. The unusual and discouraging volume of the argument has not, however, prevented its perusal, since the question which it discusses is-of more than ordinary importance.

The principal point urged makes its appearance on this' motion for the first time. Our jurisdiction to entertain the' appeal from the decision of the general term is denied; and. apparently upon the ground that where after a verdict there is no motion for a new trial, but simply an appeal from the judgment, and the general term reverses and' awards a new trial, there can be no appeal from or review of that decision because it is an intererlocutory and not a final judgment, and because the original final judgment has-been destroyed by the reversal. Lest we should be suspected of having overstated or misapprehended the position of the learned counsel, it will be prudent to copy his own words.

On the first page of his “prefatory note” are these three; sentences: “Section 190 of the Code of Civil Procedure does not permit this court to entertain jurisdiction of an appeal from a judgment of the supreme court in an action after review in the general term of that court unless it be a. final judgment. When this appeal was brought, the final judgment of the supreme court for the recovery of a sum of money as damages in an action of trespass on lands had been reversed by the general term and a new trial ordered..

In the history of this court and its predecessor for half a century, there is no example of entertaining such a jurisdiction.” After reciting the amendment of the record which dismissed the learned counsel’s appeal from an order denying his motion for a new trial on the minutes, he says on page 4, of his “ prefatory note,” “ there is nothing left in this court but an appeal from the decision reversing the judgment and granting a new trial which is not appealable, and never has been.” Again, at page 30 of the brief, after a wide excursion through the cases and the Code, he declares : “ the proper application of section 190, is as follows: it excludes the jurisdiction of this court in this case because the adjudication of the general term ordered a new trial.” At page 5 of his brief, he says: the case stood and now stands in the supreme court for a new trial of the issues according to its original situation by force of the judgment of reversal as originally pronounced by the general term. But "that was an interlocutory and not a final judgment, and no ■appeal lies to this court from the general term from a judgment except a final judgment.” It is impossible to understand these' positive assertions as meaning anything else "than that in cases tried before a jury and reversed by the general term with an award of a new trial, there never can be a further appeal to this court; and that for one or both of •two reasons; one, that the final judgment at the circuit disappears on the reversal; and the other that the general term ■decision is an interlocutory, and not a final judgment. The proposition is somewhat alarming in view of our repeated ■exercise of the jurisdiction denied. Among a large number ■of cases, I cite only a few of the more recent. Case v. Dexter, 106 N. Y., 548; 11 N. Y. State Rep., 162; Mack v. Rochester German Ins. Co., 106 N. Y., 560; 11 N. Y. State Rep., 1; Kiley v. West. Union Tel. Co., 109 N. Y., 231; 14 N. Y. State Rep., 816; Tarbell v. Royal Exchange Shp’g Co., 110 N. Y., 170; 17 N. Y. State Rep., 153; Roberts v. Baumgarten, 110 N. Y., 380; 18 N. Y. State Rep., 162. These were all cases in which judgment was rendered after verdict, an appeal from the judgment taken to the general "term, a reversal there and order for a new trial and an appeal from that decision to this court which we entertained.

It is apparent that the distinguished counsel misapprehends section 190, and builds his theory on that error. The section provides that the court of appeals has jurisdiction to review upon appeal “ every actual determination made at a general term of the supreme court,” in the cases which follow. It is “any actual determination” by whatever name it is called. In the case under review it is really an order, -or an order and a judgment, and if the latter be deemed interlocutory it is none the less an actual determination of the general term which may be reviewed by us if the Code ■otherwise permits. We are, therefore, to consider the permitted cases. The first is, “where a final judgment has been rendered in an action commenced in either of those ■courts, or brought there from another court.” An argument of more than a hundred pages shows that the judgment of reversal in the case at bar does not come within "that description, a point which a later section of the Code settles in a single line.

We have only then to pass on the second subdivision. which, in express terms, gives an appeal from an order granting or refusing a new trial, and read that in connection with section 1318, which provides that where a judgment has been reversed and a new trial ordered there ■can be no appeal from the judgment or reversal, but on an appeal from the order the judgment of reversal must also be reviewed. So that, while an appeal cannot be taken from the mere judgment of reversal where it is accomponied by an award of a new trial, there can be one from that order, and on that appeal the judgment of reversal must be reviewed. To reverse the order only would be not only useless, but ruinous to the appellant if he could not touch the judgment of reversal.

In this case there was such an appeal from the order of the general term granting a new trial; the stipulation required in such case by section 191 of the Code was duly executed, and that appeal enabled us to review the order for a new trial, and at the same time the judgment of reversal of which it was the necessary and logical consequence. The appeal from the order, explicitly permitted by the Code, gives no jurisdiction. That having been obtained, we are required to extend our review to the judgment of reversal. To say that the latter cannot be appealed from is one thing; to say that it cannot be reviewed is ■quite another.

Through all the argument of the learned counsel there was no allusion to section 1318 of the Code, until the answer of his adversary thrust it somewhat sharply upon his notice and evoked a reply in which the real basis of our jurisdiction is distinctly assailed. Section 1318 is met by .referring its operation to the original appeal to the general term, and saying nothing as to its effect upon the appeal from the general term. It is that appeal only with which we are now concerned; and the position of the learned counsel seems to be, and inevitably must be, if his argument is to have either force or pertinence, that the decision of the general term, taken as a whole, was an interlocutory judgment of which the award of a new trial was an inherent part, and which did not rest upon a separate and distinct order, and the judgment being not applicable, there was nothing for us to review. The trouble is that the decision of the general term, under the distinctions of the Code, is not a single, but a compound thing; consists both of a judgment and an order; a judgment of reversal, and an order for a new trial. The order may be appealed from; the judgment cannot be.. To swamp the order in the judgment would effect the counsel’s purpose, but would nullify the distinct provisions and definite object of the existing terms of the Code.

But the learned counsel relies also upon a second proposition. That is founded upon the provisions of section 1337 which forbids, in general, any determination by us of a disputed question of fact arising on conflicting evidence, and our attention is called to our own ruling in this same case (107 N. Y , 231; 11 N. Y. State Rep., 393), and especially .to Harris v. Burdett (73 N. Y., 136), which he copies in full, saying, with a touch of mild sarcasm, “prolixity cannot, in legal judgment, be predicated of an opinion of this court.”

That case states the law correctly and as we have steadily-enforced it. One sentence in it, however, the learned counsel' seems not to have observed, and it touches the vital point, in this controversy. That sentence is “an order granting-a new trial is not shown - to be erroneous by showing that there was no valid exception in the case, provided it was in. such a condition that the general term could have reversed! upon the facts.” The learned counsel seems to think, and to silently assume, that in jury cases the facts are always-open to the review of the general term. That is not at all a correct proposition. By section 1346, which defines the appellate jurisdiction of the general term, an appeal from a final judgment, rendered upon the verdict of a jury, can only be taken upon questions of law. In such a case the facts never get before the general term unless a motion for a new trial has been made and denied, and under section 1347 an appeal has been taken from that order to the general term. The learned counsel followed that practice. He-moved for a new trial on the minutes; that motion was; denied, and then he appealed both from the judgment and order. The general term refused to consider the fácts because the grounds of the motion were not stated, but did hear the appeal from the judgment on the questions of law, and reversed the judgment and ordered a new trial. The-plaintiff appealed to this court. When the record came here it showed an appeal from the order as well as the-judgment of the trial court, and we could not say that the reversal might not have been upon the facts; and so we dismissed the appeal, unless by an amendment the difficulty should be removed. The general term made that amendment. It changed its order so as to show a dismissal of the-appeal from the order refusing a new. trial. The learned counsel is severe upon the tribunal which made the amendment, and treats it with scant courtesy; but the order was-proper and just upon the facts which existed. And so when the case came back nothing was left but a reversal and order for a new trial founded upon errors of law; for in the-condition of the appeal that reversal could not have been, upon the facts:

On the argument here the learned counsel relied mainly upon three propositions, as showing error which justified a reversal. He argued them then; he argues them over again now, but substantially they come back to us unchanged. The correction he makes as to the want of evidence in the-record that the two blocks were in one enclosure seems to-be right, but abundant evidence remained of the detention. of block twenty-three by and through the violence which occured to carry that question to the jury. No ground is :shown on this branch of the motion which brings the case within our rules for granting a re-argument.

The motion should be denied, with costs.

All concur.  