
    Leonard W. Ely, Respondent, v. William M. Barrett, as President of Adams Express Company, Appellant.
    
      Ely v. Barrett, 181 App. Div. 176, appeal dismissed.
    (Argued May 27, 1918;
    decided June 4, 1918.)
    Motion to dismiss an appeal by permission from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 12, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.
    The motion was made upon the ground that the judgment, from which leave to appeal was granted, has since been amended by the Appellate Division and the question which it was sought to review has now been eliminated by reason of such amendment and upon the further ground that the appeal was frivolous and raised only academic questions.
    
      Alison M. Lederer for motion.
    
      Edward V. Conwell opposed.
   Per Curiam.

On the 5th of March, 1918, leave was given to defendant to appeal from a judgment. Before a.notice of appeal was served, plaintiff made a motion at the Appellate Division, that it make findings of fact, to the effect that the damages sustained by plaintiff were due to defendant’s negligence. The motion was granted, the findings made, and a new judgment rendered to conform with such findings.

After the judgment was rendered the defendant served a notice of appeal, not only from the original judgment, but from the new judgment. The plaintiff now moves for a re-argument of the motion giving defendant leave to appeal, and for a dismissal of the appeal.

1 The Appellate Division had the power, under section 1317 of the Code of Civil Procedure, for the purpose of supporting the judgment, to reverse findings made by the trial court and substitute new findings in place thereof. (Rives v. Bartlett, 215 N. Y. 33; Birnbaum v. May, 170 N. Y. 314.) A new judgment was entered upon the findings unanimously affirming the judgment of the trial court. That judgment took the place of the original judgment and defendant could not appeal therefrom without leave. Leave has not been given and, therefore, the motion to 'dismiss the appeal is granted, with costs, and ten dollars costs of motion.

His cock, Ch. J., Chase, Hogan, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Appeal dismissed.  