Derleth v. De Graff
| Decision Date | 25 January 1887 |
| Parties | DERLETH v. DE GRAFF and others. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
James R. Marvin, for appellant.
Nelson Smith, for respondent.
At a prior term of this court a motion was made to dismiss the appeal in this case, upon the ground that it was unauthorized, and that motion was granted. This is a motion for a reargument of the prior motion. We have carefully reconsidered the matter, and are of opinion that no error was committed. The action was tried before a jury, and a verdict rendered in favor of the plaintiff. After the verdict, the defendants made a motion before the trial judge, upon his minutes, for a new trial, and an order was entered denying that motion. Judgment was then entered in favor of the plaintiff. Thereafter a case containing exceptions was settled, and the defendants appealed to the general term from the judgment, and also from the order denying a new trial, and the general term affirmed both the judgment and the order. Then, before the entry of any judgment of affirmance, the defendants' attorney served a notice of appeal to this court from the judgment entered at the trial term, and also from the order of the general term affirming the judgment, and the order denying the defendants' motion for a new trial. The case of Kilmer v. Bradley, 80 N. Y. 630, is a precise authority for holding that the appeal to this court from the order affirming the judgment was unauthorized. Such an order is simply an authority for the entry of the judgment of affirmance. That judgment should first be entered, and an appeal brought from that.
But it is claimed that the defendant had a right to appeal to the court from the order of the general term so far as it affirmed the order of the trial judge denying the motion for a new trial. We think otherwise. The appeal from that portion of the order could bring no question to this court which was not involved in the affirmance of the judgment. Upon such an appeal, if we could entertain it, we could review only questions of law raised upon the trial, and those questions would be involved upon an appeal from the judgment to be entered upon the order of affirmance. Under such circumstances, an appeal from the order affirming the order which denied a new trial would be entirely nugatory. If that order should be affirmed, the defendants would still have the right, after entry of judgment of affirmance, to appeal from that, and try the experiment upon...
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Croveno v. Atlantic Ave. R. Co. of Brooklyn
...judgment, and not from the order of affirmance. Indeed, such an order is not appealable. Kilmer v. Bradley, 80 N. Y. 630;Derleth v. De Graff, 104 N. Y. 661, 10 N. E. 351. In determining the right of appeal, we must consider that it is not a natural or inherent right, but rests upon the stat......
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Morgan v. Sanborn
...order of the Appellate Division directing such a judgment. Cardozo on the Jurisdiction of the Court of Appeals, § 85; Derleth v. De Graff, 104 N. Y. 661, 10 N. E. 351. This being so, so much of the appellants' notice of appeal as refers to the order of the Appellate Division is irregular. U......
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Voisin v. Commercial Mut. Ins. Co.
...had it not been for some misconception as to the position of this court, as indicated by its decisions in the cases of Derleth v. De Graff, 104 N. Y. 661, 10N. E. Rep. 351, and Ross v. Railroad Co., 109 N. Y. 645, 16 N. E. Rep. 682. The Derleth Case was an appeal to this court from an order......
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Delaware, L.&W.R. CO. v. Burkard
...order is not appealable, and we are of that opinion. The cases of Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701, and of Derleth v. De Graff, 104 N. Y. 661, 10N. E. Rep. 351, are precise authorities for this conclusion. There is abundant scope for the operation of the provision contained ......