
    Arthur Brown, Respondent, v. Elmer J. Schneider, Defendant, Amos J. Brown, Appellant.
    Submitted February 16, 1970;
    decided February 26, 1970.
    
      
      Manley H. Thaler for motion.
    
      Edmund J. Hoffmann, Jr. opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, in the following memorandum: The motion for leave to appeal should be dismissed, upon the ground that there is no direct appeal by leave of court from the order (denominated a judgment) sought to be appealed from (cf. CPLE 5602, subd. [a]). Moreover, an appeal as of right does not lie because there is involved no challenge of a statute on constitutional grounds, nor does the order (denominated a judgment) sought to be appealed from finally determiné an action within the meaning of the Constitution (CPLE 5601, subd. [b], par. 2). If in fact there was an appeal perfected to the Appellate Division from the order of the Supreme Court denying the motion for a new trial (denominated a motion for a mistrial), then the Appellate Division had power, in the sense of jurisdiction over the litigant, to entertain the appeal (CPLE 5701, subd. [a], par. 2, cl. [iii] ; see, also, 7 Weinstein-Eorn-Miller, N. Y. Civ. Prac., par. 5701.12). [See 25 N Y 2d.903.]  