
    Edward Roberts, App’lt, v. August Baumgarten et al., Resp’ts.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    Ejectment—New trial—Cannot be granted after judgment entered on stipulation.
    In an action of ejectment, after judgment absolute rendered by the court of appeals upon stipulation given pursuant to § 191 of the Code, no-right to a new trial exists by virtue of § 1525.
    Appeal from order vacating an order granting a new trial as matter of right on payment of costs in an action of ejectment.
    A judgment in favor of plaintiff was reversed by the general term, and the order of reversal was affirmed by the court of appeals and judgment absolute rendered on the stipulation given upon appeal to that court. 110 R. Y., 380; 18 R. Y. State Rep., 162. Thereafter plaintiff procured an order for a new trial pur- ■ suant to § 1525 of the Code, which was vacated by the order appealed from. The court at special term delivered the following opinion:
    ' Dugro, J.—It seems that the Code provisions requiring a-stipulation for judgment absolute against an appellant, if an order granting a new trial is affirmed, subd. 1, § 191, Code Civil Pro.; subd. 2, § 11, Code Pro., remained substantially unchanged,, so-far as they affect the question under consideration, during the existence of at least four different provisions as to new trials in ejectment actions ; so that in endeavoring to interpret subd. 1, § 191, and §§ 1524-5, Code Civil Pro., with respect to each other, the question is chiefly as to the intention of the lawmakers in originally requiring the assent, and as to their intention in enacting §§ 1524-5, of the present Code.
    In 1857, § 11 of the Code of Procedure was amended so as to require a stipulation for judgment absolute in cases where an appeal was taken to the court of appeals from an order granting a new trial. At that time and up to the passage of the act of 1861 (post) the Revised Statutes provided that in ejectment actions a second trial, as a matter of right, could be had after judgment where the judgment had been rendered upon a verdict. This right was allowed in order to afford a way for relief against the accidents and misfortunes to which jury trials are peculiarly liable. Bayv. Gage, 36 Barb., 448.
    In cases where the judgment had been entered after the stipulation, the assent being optional, none of the risks incident to jury trials were incurred. So the reason which induced the allowance of a new trial in cases where a judgment had been rendered on a verdict would not apply to cases where the judgment had been rendered upon the stipulation.
    It therefore appears that the stipulation required was one for judgment absolute as against the right of an appellant, inclusive of his right to a new trial after judgment, and the giving of the stipulation operated accordingly. Chapter 221, Laws of 1861, amended the Revised Statutes so that a new trial as a matter of right could be had after any judgment in an action of ejectment, but this sweeping privilege was speedily cut down by an amendment, chap 485, Laws 1862, which provided .in effect that a new trial could be had as of right in an action of ejectment after “ judgment rendered upon a verdict of a jury or a report of a referee upon the facts- or upon a decision of a, single. judge upon the facts.”
    By the Code of Civil Procedure the law was again changed'so that it is now provided that a new trial may be had as a matter of right in the actions referred to “ after a final judgment rendered upon the trial of an issue of fact. ” Sections 1524-5.
    From a consideration of these changes in the law I am unable to discern any reason which would afford a fair basis-for opinion that the effect of making the stipulation as to judgment absolute is now otherwise than it was in 1857, when the assent was first required. In addition it may be said that in the present action there is no judgment which was rendered upon a trial; the only one now in existence was rendered upon a stipulation and it stands in effect as a judgment entered by consent.
    For these reasons it seems that the judgment rendered by the court of appeals in this action was not such a judgment as is referred to in § 1525, Code Civ. Pro.
    The necessary conclusion is that in an action of ejectment after judgment.absolute rendered by the court of appeals upon the right of an appellant who has assented as required by § 191 of the Code, no right to a new trial exists by virtue of § 1525.
    The motion to vacate the order of January 17th is granted.
    
      Daniel G. Rollins, for app’lt; Cephas Brainerd, for resp’ts.
   Freedman, J.

The question involved is a novel' one. Many considerations have been advanced for and against the right to a new trial in a case like the present, under the provisions of the Code of Civil Procedure in force at the present time. The question can only be settled by the court of appeals, and it is important that it should be settled. As the learned judge who made the order appealed from rendered a well considered opinion, I think it is best, especially in view of the rulings of the court of appeals in Godfrey v. Moser, 66 N. Y., 250; Hiscock v. Harris, 80 id., 402, and Conklin v. Snider, 104 id., 641; 5 N. Y. State Rep., 556, as to the effect to be given to the stipulation for judgment absolute filed by an appellant to that court, that the order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Truax and Ingraham, JJ., concur.  