
    Rachel Pasinsky and Harry Pasinsky, as Executors under the Last Will and Testament of Henry Pasinsky, Deceased, Appellants-Respondents, v. The Metropolitan News Company, RespondentAppellant. Morris Eisenman and Meyer A. Rosen, Defendants.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Appeal — when appeal lies from order of Municipal Court of city of New York — when statement of trial justice not sufficient to set aside verdict.
    No appeal lies from an order of the Municipal Court of -the city of New York denying a motion to vacate an order setting aside a verdict in favor of plaintiff and vacating the judgment entered thereon.
    Where in an action to recover rent for a certain month neither side . excepted to a charge to the jury that whether defendant was a hold-over under a lease with plaintiffs’ testator and thereby became liable for the rent sued for in a certain sum was purely a question of fact, an order setting aside the verdict in favor of plaintiffs and vacating the judgment entered thereon was erroneous, the evidence being sufficient to sustain the finding of the jury and there being nothing in the record to sustain any inference that the verdict was rendered under the influence of prejudice or partiality.
    
      A statement of the trial justice, that “ the indiscriminate use by witnesses of the Metropolitan Newspaper Company, when the Metropolitan Nt.ws Company is meant,” was not sufficient ground for setting aside the verdict as both terms were fully and clearly explained in the charge of the court and their application made plain to the jury.
    Cross appeals by plaintiffs and the defendant Metropolitan News Company, from orders of the Municipal Court of the city of New York, borough of Manhattan, seventh district. The facts are set forth in the opinion.
    S. Leighton Frooks, for plaintiffs.
    Salem & Lesser, for defendant Metropolitan News Co.
   Guy, J.

There are cross appeals in this case. The plaintiffs appeal from an order dated April 20, 1914, setting aside a verdict of a jury rendered on April 8, 1914, in favor of the plaintiffs against the defendant news company and also from an order entered April 28,1914, which denied a motion to set aside and vacate the order of April 20, 1914. The defendant news company appeals from “the ruling of the court on the trial of the above entitled action, on the 8th day of April, 1914, denying the defendant Metropolitan News Company’s motion for the dismissal of the complaint both after the plaintiffs’ case and at the end of the trial, and from the finding of the jury on said day, and from the order of April 20, 1914, in the respect that it fails to dismiss the complaint.” As to the defendant news company’s appeal, it must be dismissed. No appeal will lie from a “ ruling ” made by a trial court, nor from the ‘ ‘ finding of the jury, ’ ’ nor from an order denying a motion to dismiss a complaint. If there had been a judgment of dismissal entered or if the judgment in this action had not been vacated by the order of April 28, 1914, from which plaintiffs appeal, the defendant could have appealed from such judgment and brought up for review any ruling of the court, the finding by the jury, or the denial of its motion to dismiss the complaint. The judgment entered in favor of the plaintiffs having been vacated, the appeal of the defendant from the several acts stated in its notice of appeal will not lie. The plaintiffs’ appeal from the order of April 28, 1914, which denied their motion to vacate the order of April 20, 1914, must also be dismissed, as no appeal will lie from an order denying a motion to vacate an order, which sets aside a verdict and vacates a judgment entered thereon, as it is not one of the orders enumeratéd in sections 253-256 of the Municipal Court Act. This leaves only the plaintiffs’ appeal taken from the order of April 20, 1914, which set aside the verdict of ■ the jury, to be considered. The plaintiffs claim that this order should be reversed, upon two grounds, as follows: First. That a motion to set aside the verdict was made and denied at the time of its rendition, that the power of the court was thereby exhausted and that, therefore, the order of April 20, 1914, which set aside the verdict was without authority; and, second, that the verdict of the jury was justified by the evidence, and the setting aside of the same was a usurpation of the powers of the jury who are the sole triers of the issues of fact. As to the first ground urged, the record does not support plaintiffs’ contention. The action was brought against the news company and two other defendants as copartners, named Morris Eisenman and Meyer A. Rosen; the case was tried before a jury on April 8, 1914. At the close of plaintiffs’ case the court below dismissed the complaint as to Eisenman and Rosen, and put the defendant news company on its defense. After the verdict was rendered, the minntes of the trial show that the defendant moved to set aside the verdict which motion the court took under advisement and reserved its decision. There is an undated and unsigned indorsement upon the summons as follows: “ Motion to set aside verdict denied,” from which the word “ denied ” is erased. This indorsement has no effect as an order, and in the light of the statement made in the minutes, as before stated, furnished no ground for plaintiffs’ claim that the motion to set aside the verdict was first denied on April eighth and subsequently granted on April twentieth upon an eoo parte application made by the defendant news company. As to the second ground urged by plaintiffs for a reversal of the order of April twentieth, it is well founded. After the elimination of the defendants Eisenman and Rosen from the case the issue tried was whether or not the news company was a liold-over under a lease made by it with the plaintiffs’ testator, and thereby became liable for rent for the months of November and December, 1913, and-January, 1914, at a rental of twenty-five dollars per month as claimed by plaintiffs and for which the plaintiffs had a verdict. This was purely a question of fact. The court below so charged the jury to which charge neither side excepted. His charge upon that question was clear and explicit, as follows: “In order to establish the plaintiffs’ case he has to convince you and satisfy you that the holding-over, if there was any holding-over, or an occupation under a holding-over, was had by the corporation and by nobody else. If he does that he is. entitled to a verdict of $75. If he does not and you come to the conclusion that these premises were held, not by the corporation but were held by the individuals Goldberg and Eisenman, why then you will bring in a verdict for the defendant. That is all there is to the case. The question is whether they held over or whether the corporation held over or not •— occupied these premises or not — for the month of November; and the rent, of course, it is conceded that they have not paid any rent for the months of November, December and January. They are suing for those'three months, and the burden is on the plaintiffs to establish that the corporation was the hold-over. If he has successfully, carried that burden, if he satisfies you that this is the actual condition, that this corporation did hold over and occupied these premises then he would be entitled to a verdict. If you do not believe that to be the true state of facts, and that Goldberg and the other man held over, why then the plaintiff will have to seek other relief in a different action. ’ ’ There was sufficient evidence to sustain the finding of the jury and there was nothing in the record to give any inference, that the verdict' was rendered under the influence of prejudice and partiality. No requests to charge were denied, and as before stated no exceptions to the charge were made. The statement of the trial justice that ‘ ‘ the indiscriminate use by witnesses of the Metropolitan Newspaper Company, when the Metropolitan News Company is meant, etc.,” furnished no good reason for setting aside the verdict, as those terms were fully and clearly explained by the justice in his charge and their application made plain to the jury.

Order reversed, with costs and verdict and judgment reinstated, with costs.

Plaintiffs’ appeal from order of April 28, 1914, dismissed, without costs.

Defendants’ appeal dismissed, without costs.

Pendleton and Sheabn, JJ., concur.

Order reversed, with costs, and verdict and judgment reinstated, with costs.  