
    William Howe v. Denis Julien.
    No appeal lies to this court from a decision given at a general term of the Marine Court, merely reversing a judgment in favor of the plaintiff.
    Such a decision is not a final determination of the rights of the parties to the action. That court at general term may reverse, affirm or modify the judgment appealed from, and upon a reversal may order" a new trial, or may give final judgment for the defendant when it is apparent that upon no possible state of proofs can the plaintiff recover.
    But where the judgment is reversed because the evidence at the trial was insufficient to sustain it, and it is not perfectly clear that the deficiency cannot be supplied, a new trial should be awarded.
    Appeal from the general term of the Marine Court. On the trial in that court, before a justice, the plaintiff had judgment, which, upon appeal to the general term, was reversed, without awarding a new trial. The case showed that the reversal was upon the ground that the evidence at the trial was insufficient to sustain the judgment of the justice, but it was not apparent that, the deficiency in the proofs might not be supplied upon a new trial. The plaintiff appealed to this court.
    
      Jonas B. Phillips, for the appellant.
    
      Thomas E. Stewart and D. Jones Crain, for the respondent.
   By the Court, Hilton, J.

Upon the trial of this action be • fore one of the justices of the.Marine Court, judgment was rendered for the plaintiff. The defendant appealed to the general term of that court, where the judgment was reversed; and from this decision of the general term, reversing the judgment generally, and without awarding a new trial, or in any way determining the rights of the parties to the action, an appeal is brought by the plaintiff to this court.

It is prescribed by the Code (§ 352,) that when a judgment shall have been rendered by the general term of" the Marine Court, the appeal shall be to this court, but it shall only “ be from an actual determination at such general term.”' And as a judgment is defined, by § 245,- to be “the final determination of the rights of the parties in the action,” it seems quite clear that this case is not in a condition to be brought before us for review.

There has been no actual or final determination of the rights of the parties by the Marine Court, and until such a determination is had, and the case’is at amend in that court, it cannot be brought here, it being the policy of the Code to allow only one. appeal to us in the same action. Such was the construction given by the Court of Appeals to similar language used in the the Code (§ 11,) respecting appeals to that court, (Swartwout v. Coutes, 4 Comst. 415; Duane v. Northern RR. Co., 3 id. 545; Paddock v. Springfield Fire and Marine Ins. Co., 2 Kernan, 591), and we have repeatedly held in cases like the present, where the judgment has been reversed on appeal, that the Marine Court were clearly wrong in not awarding a new trial; and in many instances appeals have been dismissed, or the returns sent back, with directions to that effect.

That court has, at general term, all the powers, in reviewing a judgment brought before it on appeal, that a general term of the Supreme Court has in like cases. It may reverse, affirm, or modify the judgment, and in case of reversal may order a new trial, or instead may give final judgment in favor of the defendant, where it can see that no possible state of proof applicable to the issues in the cause will entitle the plaintiff to a recovery, (Figaniere v. Jackson, 11 Howard P. R. 462; Edmonston v. McLoud, 16 N. Y. Rep. 543; Griffin v. Marquardt, 17 id. 28), although, in the language of Judge Comstock in the latter case, (p. 33), “ it is proper to say, and to say it with great distinctness as the opinion of this court, that extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate court should be exercised in that direction only in cases where it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against 'whom the reversal is pronounced cannot’prevail in the suit.”.

I have no hesitation, however, in adding that this is not a case in which such a final judgment should be given. The evidence at the trial may not have been sufficient in law to sustain the judgment, yet it was impossible for the appellate court to know that the necessary proof might not be supplied on another trial, and which it was their duty to order. The appeal must be dismissed, and the return sent back to the Marine Court, that the proper judgment may be there given.

Ordered accordingly.  