
    Sadie Babad, Appellant, v. Colton Dental Association and Perry R. McNeille, Respondents.
    First Department,
    May 17, 1912.
    Appeal — practice — denial of motion for new trial — when Appellate Division cannot hear motion in first instance — such order appealable.
    A motion for a new trial cannot be heard by the Appellate Division in the first instance after such motion has been entertained and denied by the trial court. The remedy of the defeated party is to appeal from the order and judgment if one be entered.
    An appeal lies from an order denying a motion for a new trial upon the minutes on the grounds specified in section 999 of the Code of Civil Procedure, where the motion was made on notice and was opposed by the plaintiff. It is not necessary that the defendant move to set the order aside.
    
      Appeal by the plaintiff, Sadie Babad, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1912, directing that exceptions be heard in the first instance at the Appellate Division.
    
      Abraham Benedict, for the appellant.
    
      George W. Phillips, Jr., for the respondents.
   Miller, J.:

The plaintiff had a verdict in this case for $15,000. The defendant made a motion for a new trial upon the minutes on ■ all the grounds specified in section 999 of the Code of Civil Procedure, which was entertained and denied by the court, and thereafter a formal order denying the same and a judgment upon the verdict were entered. Thereafter the defendant moved on notice for the order appealed from.

It is manifest that a motion for a new trial cannot be heard by the Appellate Division in the first instance after such a motion has been entertained and denied by the trial court. The remedy of the defeated party on such a rhotion is to appeal from the order and the judgment if one is entered. The affidavit used in support of the motion shows that the purpose of the motion was to procure a stay without giving an undertaking on appeal, but the provision of section 1000 of the Code of Civil Procedure, “and that judgment be suspended in the meantime,” obviously means that the entry of the judgment is to be suspended pending the determination of the motion on the exceptions to be heard in the first instance by the Appellate Division.

It is urged that the order is not appealable. Section 1000 provides: “At anytime before the hearing of the exceptions the order may be revoked or modified, upon notice, in court or out of court, by the judge who made it; or it may be set aside for irregularity, by the court, at any term thereof.” Had the application for the order been ex parte the plaintiff’s remedy would doubtless have been a motion to set it: aside. But the order was made on notice and was opposed by the plaintiff, and it would be imposing a useless formality to require a motion to be made to set it aside.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Glared and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  