
    Andrew Powell, App’lt, v. Hugh Lamb and Ano., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 4, 1889.)
    
    1. Appeal—From city court—When not entertained.
    It is well settled that an appeal to this court from the city court will not be entertained where the court below has ordered a new trial in a cause tried by a jury, where any material and controverted question of fact was. involved and the court granted or might have granted a new trial upon such question of fact.
    
      Scott Lord, for app’lt; Chas. H. Mundy, for resp’ts.
   Allen, J.

—This is an appeal by plaintiff from an order of' the general term of the city court, affirming an order of the trial term, setting aside the verdict of a jury in favor of the plaintiff, and granting a motion for a new trial upon the-minutes.

The_ action was brought for brokerage for the sale by-plaintiff of real estate belonging to the defendants. The answer is substantially a general denial. The issue was submitted to the jury, who rendered a verdict in favor of the plaintiff for the amount claimed. The defendant thereupon moved to set aside the verdict, and for a new trial upon, the minutes and exceptions, which motion was granted. The order of the Court below, however, does not indicate whether the order of the trial term was affirmed, because the vervict was against the weight of evidence, or because upon the undisputed facts the plaintiff was not entitled to-recover; yet all the evidence was before the general term for review, and the character of the evidence was such that, a new trial might have been granted on questions of fact.

It is well settled that an appeal to this court from the city court will not be entertained where the court below has ordered a'new trial in a cause tried by a jury, where any material and controverted question of fact was involved, and the court granted or might have granted a new trial upon such question of fact. Harris v. Burdett, 73 N. Y., 136. As in this case a new trial may have been ordered on the ground that the verdict was against the evidence, the order appealed from is not reviewable by us. The rule applied in this court where an appeal is taken from an order of the general term of the city court that grants a new trial or affirms an order of the special term granting a new trial, in. determining whether to dismiss the appeal or to give judgment absolute against the appellant, will be found in Brown v. Simmons, 15, N. Y. State Rep., p. 370; Tinsdale v. Murray, 9 Daly, 446; Harris v. Burdett, 73 N. Y., 136; Sands v. Crooke, 46 N. Y., 569; Mackay v. Lewis, 73 N. Y., 382. If' the appeal is submitted to us for decision, we affirm the order and give judgment absolute against the appellant, whenever we discover in the record, as we do in this case,. grounds sufficient to warrant the order for a new trial. But where the appellant discovers his mistake in appealing to this court, and at the • argument, or before the argument, asks permission to withdraw the appeal, we dismiss the appeal on payment of costs where there is no doubt of the appellant’s good faith in taking the appeal.

Applying this rule in the case under consideration, the order appealed from must be affirmed and judgment absolute ordered against the plaintiff under the stipulation.  