
    GURNEY a. SHARP.
    
      New York Common Pleas;
    
      Special Term, April, 1864.
    Appeal.—Motion fob New Trial after Judgment.—Case.— • Order nunc peo tuno.
    Where, after an appeal has been taken from a judgment, a case is made and settled, and the parties appear to argue the appeal upon the case, no objection for irregularity being taken, leave will be given to enter mncpro tunc an order refusing a new trial.
    Motion by defendant for an order mme pro tunc denying a new trial, or for an order attaching case to the judgment-roll.
    The action was brought by Richard C. Gurney against William J. Sharp, and was tried before Mr. Justice Brady and a jury, November .12, 1863, and a verdict rendered by jury, for plaintiff, for $420. On November 17, 1863, judgment absolute was perfected by plaintiff. After the judgment was perfected, defendant served notice and perfected an appeal to the general term. A case 'was afterwards made and settled. Both parties noticed appeal for argument at the April general term, 1864, at which term the argument of the appeal was set down for the second week. After the cause was set down, and before argument, the defendant made this motion.
    
      William J. Huff, for the motion.
    
      Joseph Larocgue, opposed.
   Brady, J.

The parties to this action, by their respective counsel, having attended to argue the appeal taken, on the case made, and no notice of any irregularity having been given, I think that the order denying a new trial at special term should be entered nunc pro tunc / but with the proviso that the appeal herein shall be argued when called at the present term, and that the plaintiff have $10 costs of this motion, to abide the event of the appeal;—the appeal to be heard upon the case, already served, so that no delay may take place.

Ordered accordingly.  