
    Sylvester A. Mead vs. Bernard Rudnick.
    February 8, 1940.
   Appeal dismissed with double costs. In this action of tort tried in the Superior Court there was a verdict for the plaintiff. The defendant moved for a new trial on the ground that the verdict was against the evidence and the weight of the evidence, and that the damages were excessive. The motion was denied and the defendant appealed. The denial of the motion was not an order from which an appeal lies. It was neither an “order . . . sustaining or overruling a demurrer” nor an “order for judgment upon a case stated,” and it was not an “order decisive of the case founded upon matter of law apparent on the record.” G. L. (Ter. Ed.) c. 231, § 96. The evidence upon which the verdict was rendered is not a part of the record. The appeal, therefore, must be dismissed. Pheeney v. Malden Coal Co. 300 Mass. 60, and cases cited. Though the court has no jurisdiction of the merits, it has jurisdiction to award costs. Donnelly v. Montague, 305 Mass. 14, 20. The appeal is frivolous, and double costs of such appeal are awarded against the defendant. G. L. (Ter. Ed.) c. 211, § 10.

M. H. Slobodkin & H. M. Pakulski, for the defendant.

J. S. McKenney, for the plaintiff.  