
    (84 Hun, 396.)
    FOX et al. v. MATTHIESSEN.
    (Supreme Court, General Term, Second Department
    February 11, 1895.)
    1. Appeal—Intermediate Orders.
    An order denying a motion made at special term to set aside a verdict for misconduct of a juror, and an order denying a motion to resettle the first order, are not “intermediate” orders, within Code Civ. Proc. § 1316, providing that an appeal from a final judgment brings up for review “an intermediate order which is specified in notice of appeal.”
    2. Same—Discretion op Trial Court.
    Reopening a case on rebuttal, so as to permit the introduction of evidence which should have been given in chief, is discretionary with the trial court.
    Appeal from circuit court, Westchester county.
    Action by James W. Fox and others against Franz O. Matthiessen to recover commissions on the purchase price of certain sugar refineries. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal.
    Affirmed.
    Argued before BROWN, P. J., and PRATT, J.
    James M. Hunt, for appellants.
    Martin J. Keogh, for respondent.
   BROWN, P. J.

This action was brought to recover commissions upon the purchase price of certain sugar refineries alleged to have been earned under an agreement with the defendant. Upon the trial the jury rendered a verdict for the defendant. The verdict was rendered on April 12, 1894, and an order entered on that day denying a motion for a new trial on the judge’s minutes, but judgment was not entered until June 16th. On May 5th the plaintiffs moved at special term, upon affidavits and upon the minutes of the trial, to set aside the verdict and for a new trial, upon the ground of the misconduct of a juror; and an order denying such motion was made and entered on May 10th, and on May 26th another motion was made to resettle the order of May 10th, which was denied upon the same date, and an order duly entered. The notice of appeal in this case is from the judgment, and states that the plaintiffs intend to bring up for review at the same time the order denying plaintiffs’ motion for a new trial upon the minutes and the orders of May 10th and May 26th. There is no appeal from any of the orders, except in the manner and form stated. The form of the appeal does not bring before us for review the orders of May 10th and May 26th. Those were not intermediate orders. Section 1316 of the Code provides that an.appeal from a final judgment brings up for review “an intermediate order which is specified in the notice of appeal and necessarily affects the judgment.” A notice of appeal from a judgment which specified an order denying a motion for a new trial on the judge’s minutes was held, under this section, to bring up such an order for review. Hymes v. Van Cleef (Sup.) 15 N. Y. Supp. 343; Pfeffer v. Railway Co. (Super. Buff.) 24 N. Y. Supp. 490. But an order denying a motion to set aside a verdict on the ground of surprise, irregularity in the trial, and misconduct of one of the jurors has been held not to be an intermediate order necessarily affecting the judgment. Selden v. Canal Co., 29 N. Y. 635; Hymes v. Van Cleef (Sup.) 15 N. Y. Supp. 341. In the last case the court defined an “intermediate order” to be one made between the commencement of the action and the entry of the judgment from which the appeal is taken. The orders appealed from in this case fall within the letter of that definition, but they do so merely from the fact that the defendant delayed entering the judgment long after he was entitled to do so, and not from any connection existing in law or fact between the orders and the judgment. The motions were not addressed to the trial court, but to the special term, long after the circuit adjourned; and while it is a fact that, had they been granted, judgment would not have been entered, it is equally the fact that there was the legal right to enter the judgment immediately upon the rendition of the verdict, and neither the motions nor the orders that the court might make therein necessarily affected that right; and, if it was necessary for us to define an “intermediate order,” we should designate it as one made between the commencement of the action and the time the successful party had a right to enter final judgment. We are of the opinion, therefore, that the orders denying a new trial for the misconduct of the juror are not before us for review, and the appeals therefrom are dismissed.

Upon the merits of the case, the testimony was of a most conflicting character. The jury adopted the defendant’s version of the case, and their determination of the facts is final. The exceptions to the exclusion of testimony are not sustained. The testimony .offered in rebuttal was properly excluded. The facts which it was sought to bring out were not material to the controversy. It was not denied that Leonard and defendant had had frequent conversations both at their respective homes and on the trains. The facts that defendant might have been frequently at Leonard’s home, or that he was there on a Sunday afternoon when Leonard started for Philadelphia, or that he once had a long conversation with Leonard on the train, were all corroborative of Leonard’s testimony, and, if they had any relevancy to the case, tended to establish Leonard’s version of the contract. It was therefore a part of his original case, and he had no right to withhold a part of his testimony until he had ascertained how far defendant’s testimony would contradict him, and then offer the balance in rebuttal. It was discretionary with the court how far it would permit a reopening of the case on rebuttal, and its ruling in that respect is not reviewable on appeal. We have examined the other exceptions, but there are none that require notice. The judgment and order denying a new trial on the judge’s minutes must be affirmed, with costs, and the appeals from the orders of May 10th and May 26th are dismissed, with $10 costs and disbursements.  