
    Anson C. Kennicutt, Appellant, v. Joshua Parmalee, Respondent.
    
      Court of Appeals,
    
    
      April 24, 1888.
    Affirming same case, 39 Hun, 651, Mem.
    1. Appeal. Order granting new trial.—Where there were issues of fact tried and questions of fact submitted to the jury, and the motion for a new trial does not appear to have been based solely upon exceptions or questions of law, an appeal from an order of the general term affirming a special term order granting the motion for a new trial, does not bring anything for review to the court of appeals.
    2. Same. Judgment absolute.—The court of appeals, instead of dismissing the appeal, affirmed the order, and directed judgment absoluto against the-appeliant.
    Appeal from an order of the general term of the supreme court, affirming an order setting aside a verdict for plaintiff and granting a new trial.
    
      B. F. Congdon for appellant.
    
      W. H. Henderson for respondent.
   Earl J.

This action was tried before a jury, and they rendered a verdict in favor of the plaintiff. The defendant then made a motion • for a new trial upon the minutes of the court and an order was made setting aside the verdict and granting a new trial. From this order the plaintiff has brought an appeal stipulating for judgment absolute in favor of the defendant, in case the order should be affirmed.

There were issues of fact tried and questions of fact submitted to the jury. The motion for a new trial does not appear to have been based solely upon exceptions or questions of law, and hence the motion may have been granted by the trial judge in the exercise of his discretion upon the facts. That such an appeal does not bring anything for review to this court, has been settled by numerous decisions, Wright v. Hunter, 46 N. Y. 409; Sands v. Crooke, id. 564; Dickson v. Broadway and Seventh Avenue R. R. Co., 47 id. 507; Downing v. Kelley, 48 id. 433 ; Courtney v. Baker, 60 id. 1; Wagner v. L. I. R. R. Co., 70 id. 614; Harris v. Burdett, 73 id. 136 ; Snebley v. Conner, 78 id. 218; Bronk v. N. Y. and N. H. R. R. Co., 95 id. 656; People v. Poucher 99 id. 610.

Instead of dismissing this appeal, as we have usually done in such cases, the order should be affirmed, for reasons stated in Snebley v. Conner. We reach this conclusion the more readily as we are inclined to the opinion that the court below made a proper disposition of the case.

Order affirmed and judgment absolute ordered against the plaintiff, with costs.

All concur.  