
    Barney Gelder, Respondent, v. International Ore Treating Company, Appellant.
    First Department,
    January 19, 1912.
    Appeal—practice — case on appeal—appeal from order denying new trial—failure to serve case on appeal from judgment.
    An appeal may be taken from an order denying a motion for a new trial in an action triable by jury irrespective of whether a judgment has been entered and irrespective of whether an appeal has been taken from a judgment, if one has been entered. This right to appeal from such order is absolute.
    Hence, although after the denial of defendant’s motion to set aside a verdict for the plaintiff and for a new trial, the plaintiff has entered judgment and the defendant has appealed therefrom, but has neglected to serve a case within the time allowed, and although an order has been entered determining that the defendant has thus waived his right to serve a case on the appeal from the judgment, he has nevertheless, on entering an order denying his motion for a new trial, a right to serve a case on an appeal from that order.
    Appeal by the defendant, International Ore Treating Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1911, denying the defendant’s motion to compel the plaintiff’s attorney to accept the defendant’s proposed case on appeal.
    
      Louis Cohn, for the appellant.
    
      Jules H. Baer, for the respondent.
   Miller, J.:

On the trial of this action the jury found a verdict for the plaintiff. Thereupon defendant moved to set it aside and for a new trial, pursuant to section 999 of the Code of Civil Procedure. The trial justice reserved decision with the statement that he would announce the decision from the bench the following morning, at which time a decision denying the motion was-announced. Plaintiff caused a judgment to be entered and notice thereof to be served on defendant’s attorney. The defendant appealed from the judgment but neglected to make and serve a case within the time allowed; whereupon a motion was made resulting in an order determining that defendant had waived the right to serve a proposed case on appeal from the judgment. Thereafter the defendant caused an order denying the motion for a new trial to be entered, served a notice of appeal from the order, and, Within fifteen days thereafter, served the proposed case on appeal.

Section 1347 of the Code of Civil Procedure provides that an appeal may be taken from an order made at Special Term or Trial Term of the Supreme Court “where it grants or refuses a neW trial.” Section 1351 provides': “An appeal, authorized by this title, must .be taken, within thirty days after service, upon the attorney for the appellant^ of a copy of the judgment or order' appealed from, and a written notice of the entry thereof.” An appeal may be taken from an order denying a motion for a new trial in an action triable by a jury irrespective of whether a judgment has been entered (Voisin v. Commercial Mut. Ins. Co., 123 N. Y. 120), or whether an appeal has been taken from the judgment in case one is entered. (Callahan v. Munson Steamship Line, 141 App. Div. 791.) Section 999 of the Code1 of Civil Procedure provides: “If an appeal is taken from the order, made upon the motion [i. e., the motion for a new trial], it must be heard upon a case prepared and settled in the usual manner.” It would seem plain, therefore, that the defendant had an absolute right to appeal from the order, that the proposed case was seasonably served, and that, if the plaintiff wished to limit the defendant’s time, he should have caused the order to be entered and a copy with notice of entry to be served on the defendant’s attorney.

The learned justice in Special Term appears to have been of the opinion that the order determining that defendant had waived the right to serve a proposed case on appeal was conclusive, but that order only related to the appeal from the judgment. The respondent relies on rule 32 of the General Rules of Practice, which, so far as applicable, provides: “Whenever it shall he necessary to make a case, or a case and exceptions, or a case containing exceptions, the same shall he made and a copy thereof served on the opposite party within the following times: * * * If the trial were before a jury within thirty days after notice of the decision of a motion for a new trial, if such motion be made and be not decided at the time of the trial, or within thirty days after service of a copy of the judgment and notice of its entry.” Assuming, without deciding, that the motion in this case was decided at the time of the trial, it seems plain that that rule cannot he so construed as to render nugatory an appeal which a party has an absolute right to take.

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

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

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