
    PUMPELLEY a. THE VILLAGE OF OWEGO.
    
      Supreme Court, Sixth District;
    
    
      General Term, January, 1862.
    Appeal from Order refusing New Trial.
    An appeal may he taken to the general term from an order granting or refusing a new trial, notwithstanding the entry of judgment in the action.
    Motion to dismiss an appeal from an order refusing a new trial.
    This action was tried at the Tioga circuit. The jury rendered a verdict in favor of the defendant. The plaintiffs made a motion at a special term for a new trial, upon a case, which was denied. The defendant then entered judgment against the plaintiffs for costs. The plaintiffs afterwards appealed from the order, denying their motion for a new trial, to the general term.
    The defendant moved to dismiss the appeal, on the ground that the plaintiffs should have appealed from the judgment, and could not appeal from the order without appealing from the judgment.
    
      George S. Camp, for the plaintiffs.
    
      N. W. Davis, for the defendant.
   By the Court.— Balcom, J.

—The appeal is expressly authorized by subd. 2 of section 349 of the Code. (See Valton a. The National Loan Fund Insurance Co., 19 How. Pr., 515.) That section provides that an appeal may be taken to the general term, where it grants or refuses a new trial.” It is not denied that plaintiffs could have reviewed the order refusing a new trial, by appealing from the judgment that was subsequently entered (see Code, § 329) ; but they could appeal from the order and not from the judgment, if they saw fit so to do, notwith standing the entry of judgment.

Motion denied, with $10 costs, to abide event. 
      
       Present, Mason, P. J., Campbell, and Balcom, JJ.
     