Baldwin's Bank of Penn Yan v. Butler

• Decision Date: 12 April 1892
• Parties: BALDWIN'S BANK OF PENN YAN v. BUTLER et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 564

30 N.E. 646

BALDWIN'S BANK OF PENN YAN

v.BUTLER et al.

Court of Appeals of New York.

April 12, 1892.

Appeal from supreme court, general term, fifth department.

Action by Baldwin's Bank of Penn Yan against John H. Butler, impleaded with others, on two promissory notes. From an order of the general term affirming an order granting a new trial, plaintiff appeals. Appeal dismissed.

M. A. Leary, for appellant.

John Gillette, for respondents.

ANDREWS, J.

It was said in Young v. Davis, 30 N. Y. 134, that ‘it is the invariable practice of this court not to review orders made by the supreme court granting new trials, on the ground that the verdict was either against evidence or against the weight of evidence.’ It has since been repeatedly held that the jurisdiction conterred on this court to entertain appeals from orders granting or refusing new trials is inapplicable to jury cases, where the order was made upon the facts. The general term may review an order in such a case, but there the right of review ends. This is an appeal from an order of the general term affirming an order of the trial judge, setting aside a verdict and granting a new trial on the merits, on the ground that the verdict was against evidence. The order was not a final order. No exception was or could be taken to the decision of the trial judge, and this court deals with exceptions only, unless otherwise expressly provided in the Code. The cases are decisive against the right of appeal to this court in a case like this. Folger v. Fitzbugh, 41 N. Y. 228;Wright v. Hunter, 46 N. Y. 409;Campbell v. Page, 50 N. Y. 658;Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 507. The appeal should be dismissed for want of jurisdiction. All concur.