
    Stevens Voisin, Pl’ff, v. The Commercial Mutual Ins. Co., Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    Appeal—From order denying motion eor new trial.
    An appeal may be taken to general term from an order denying a motion for a new trial on the minutes, although the time for taking an appeal from the judgment has expired.
    Motion to dismiss an appeal from an order denying a motion for a new trial made upon the minutes of the court.
    
      Frederick R. Coudert and William Mitchell, for pl’ff; Treadwell Cleveland, for deft.
   Daniels, J.

The motion for a new trial was made after the recovery of the verdict and denied by the court.

Judgment was afterward entered upon the verdict, and a notice of the entry served upon the attorney for the defendant, and after the time prescribed for an appeal from the judgment had expired, in case the notice was sufficient for this purpose, the notice of appeal was served from the order denying the motion for a new trial. And in support of the application to dismiss the appeal, the objection has been taken, that after the judgment was entered and the time had expired for appealing from it, an appeal could not be taken from the order itself denying the motion for a new trial; and the case of Derleth v. De Graff, 104 N. Y., 661; 5 N. Y. State Rep., 619, has been presented as an authority supporting this objection.

In that case the appeal was taken from an order of the general term affirming an order denying a motion for a new trial. At the time of the decision an appeal which had been taken from the judgment was also decided, resulting in an affirmance of the judgment, and a motion was made in the court of ajDpeals to dismiss the appeal from the order for the reason that no appeal had been made from the judgment. And the court considering this motion to be well founded dismissed the appeal from the order of the general term affirming the order denying a new trial.

And this conclusion was deemed to be warranted by the fact that upon an appeal from the order to the court of appeals that court by its reversal of the order would leave the judgment itself 'undisturbed and consequently would not dispose of the litigation. This decision seems to have been likewise followed in the dismissal of a similar appeal in the case of Ross v. Third Ave. R. R. Co., 109 N. Y., 645; 15 N. Y. State Rep., 995.

But these cases relate alone to the practice in the court of appeals, which is unaffected by legislative enactments relating to the supreme court. In this court a different practice has been prescribed. Prior to its adoption a motion for a new trial upon a case could not be made after final judgment had been entered. But this was changed by chap. 128 of the Laws of 1832, which provided in any personal action where a bill of exceptions should be taken, or demurrer to evidence put in, or a case should be made, or notice of motion given for a ne\y trial on newly discov«red evidence, and the proceedings should not be stayed, the party in whose favor the verdict was rendered might perfect his judgment and issue execution. But it was further declared that it should nevertheless be lawful for the other party to proceed to obtain a hearing before the supreme court upon the matters in question in the manner thereinafter mentioned and in case the judgment should be in his favor they might set aside the proceedings, with the verdict, and order restitution, which might be enforced by such writs of restitution as were used in cases of reversal in error, or by motion and attachment, etc. It was then declared that the cases mentioned in this, the first, section of the act, should in the first instance be heard and decided by the circuit judge of the circuit in which the cause was tried, or such other circuit judge as should hold the courts mentioned in its fifth section. And that provided for a session of the court once in every three months for hearing arguments upon bills of exceptions, cases, etc., mentioned in the first section. It was further provided also by § 4 of the same act that in these cases either party might bring the case to a hearing thereon before the supreme court by appeal after the circuit judge should have decided the same. This act changed the preceding mode of practice and permitted the defeated party in all personal actions tried at the circuit to move for a new trial upon exceptions, or a case, or demurrer to evidence, or for newly discovered evidence. But the proceedings which it authorized were restricted wholly to the circuit in the first instance, and then by way of appeal to the supreme court. The case could go no further. For the act provided for no other proceedings by way of review. And this practice provided for by the act was considered to remain in force after the enactment of the Code of Procedure.

This subject was before the court of appeals in Tracey v. Altmyer, 46 N. Y., 598, where it was held that a motion for a new trial might be made in the action after the entry of judgment, and that, “ The general term had power to review this order and upon every ground connected therewith,” and, “ It was its duty so to do.” Id., 604. And that certainly continued to be the law upon this subject until the enactment of the Code of Civil Procedure, and that has been made to include the same practice. For by § 1005, which in its language and effect is very much the same in the proceeding permitted as § 1 of the act of 1832, it has been declared that the entry of final judgment and the subsequent proceedings to collect or otherwise enforce it are not stayed by an exception, or the settlement of a case or a motion for a new trial, without an order directing a stay. But it has been added that, “ The entry, collection or other enforcement of a judgment does not prejudice a subsequent motion for a new trial, and where a new trial is granted, the court may direct and enforce restitution, as where a judgment is reversed on appeal.”

This section is applicable only to the courts before which issues of fact may be tried by a jury, and they are empowered after the rendition of a verdict to entertain a motion for a new trial. It has no application to the court of appeals, and therefore has worked no change in the power to review an order granting or denying a new trial in that tribunal. But in the supreme court, and other courts of co-ordinate jurisdiction, it has plainly secured the right to bring on and dispose of the motion, although final judgment may have been entered, and the judgment itself may have been enforced or satisfied. The section is complete and ample for this object, and when an order shall be entered upon the decision of a motion mentioned in this section, it has been further-provided by § 1347 that an appeal may be taken from it to the general term, of the same court. The authority prescribed for this purpose is entirely unqualified, and is in no respect made dependent upon the omission to enter a final judgment in the action. An exception has been made to the right to appeal mentioned in subdivision 2 of this section, but as this case is not within the exception, it does not require to be considered in the disposition of the motion. The practice which has been in this manner created was designed, as it has been expressed, to provide for a review of the trial after the judgment may have been entered and even collected. And this practice includes not only the motion itself for a new trial, which may be made either before or after the entry of final judgment, but for an appeal to the general term of the court in which the action may be pending. And so it was considered in Luddington v. Miller, 36 N. Y. Supr. Ct., 1 and this has been generally followed in Lane v. Bailey, 45 Barb., 119 ; Valton v. National, etc., Society, 19 How., 515 ; Pumpelly v. Village of Owego, 22 id., 385 ; Gannon v. Campbell, 19 Abb. Pr., 164, n., and by this general term in the case of Ross v. Third Ave. R. R. Co., already mentioned.

But it was denied in Soverhill v. Post, 22 How., 386, and by other decisions, which as they are not now controlling, do not require to be noticed. For, by the statutory provisions which have already been referred to, there appears to be no reasonable ground for doubting the authority of the court at the trial, or the special term, to hear a motion for a new trial, either before or after final judgment, or the authority of the general term to review the decision made upon such motion. The practice is different in the court of appeals, but that does not affect the course of proceeding under these statutory enactments in the supreme court or in other courts of local co-ordinate jurisdiction. Neither does § 1200 of the Code of Civil Procedure stand in the way of the defendant’s right to have the appeal heard which has been brought from the order. For that is necessarily qualified by the other sections securing this right to review the order denying a new trial. And if that shall prove to be successful, then the control which the court has over its judgments will supply all needed authority to vacate it, and conform it to the order setting aside the verdict. For without a verdict to support a judgment, it would be a practical nullity.

It has been objected that the notice of the entry of the judgment did not limit the time to take an appeal from it according to the recent decision of Good v. Daland, 23 North Eastern Rep., 474; 28 N. Y. State Rep., 935. Whether it did or not, it is unimportant to inquire, inasmuch as sufficient authority is found to entitle the defendant to take this appeal even though the notice may have "been in full compliance with the provisions of the Code permitting it to be served.

The motion to dismiss the appeal should be denied, with ten dollars costs.

Brady, J., concurs.  