Pharis v. Gere

• Citation: 112 N.Y. 408,20 N.E. 551
• Parties: PHARIS v. GERE.
• Decision Date: 05 March 1889
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 408

20 N.E. 551

PHARIS

v.GERE.

Court of Appeals of New York.

March 5, 1889.

On motion for reargument. 18 N. E. Rep. 135.

George F. Comstock, for the motion.

Louis Marshall, opposed.

FINCH, J.

This is a motion for a reargument, and is supported by briefs which cover 289 printed pages, or more than 40 times the length of the opinion which they criticise. The unusual and discouraging volume of the argument has not, however, prevented its perusal, since the question which it discusses is of more than ordinary importance.

The principal point urged makes its appearance on this motion for the first time. Our jurisdiction to entertain the appeal from the decision of the general term is denied, and apparently upon the ground that where, after a verdict, there is no motion for a new trial, but simply an appeal from the judgment, and the general term reverses and awards a new trial, there can be no appeal from or review of that decision, because it is an interlocutory, and not a final, judgment, and because the original final judgment has been destroyed by the reversal. Lest we should be suspected of having overstated or misapprehended the position of the learned counsel, it will be prudent to copy his own words. On the first page of his ‘prefatory note’ are these three sentences: ‘Section 190 of the Code of Civil Procedure does not permit this court to entertain jurisdiction of an appeal from a judgment of the supreme court in an action after review in the general term of that court, unless it be a final judgment. When this appeal was brought, the final judgment of the supreme court for the recovery of a sum of money as damages in an action of trespass on lands had been reversed by the general term, and a new trial ordered. In the history of this court and its predecessor for half a century, there is no example of entertaining such a jurisdiction.’ After reciting the amendment of the record which dismissed the learned counsel's appeal from an order denying his motion for a new trial on the minutes, he says, on page 4 of his ‘prefatory note:’ ‘There is nothing left in this court but an appeal from the decision reversing the judgment and granting a new trial, which is not appealable, and never has been.’ Again, at page 30 of the brief, after a wide excursion through the cases and the Code, he declares: ‘The proper application of section 190 is as follows: It excludes the jurisdiction of this court in this case because the adjucation of the general term ordered a new trial.’ At page 5 of his brief he says: ‘The case stood and now stands in the supreme court for a new trial of the issues according to its original situation by force of the judgment of reversal as originally pronounced by the general term. But that was an interlocutory, and not a final, judgment; and no appeal lies to this court from the general term from a judgment except a final judgment.’ It is impossible to understand these positive assertions as meaning anything else than that in cases tried before a jury, and reversed by the general term, with an award of a new trial, there never can be a further appeal to this court, and that for one or both of two reasons,-one that the final judgment at the circuit disappears on the reversal, and the other that the general term decision is an interlocutory, and not a final, judgment. The proposition is somewhat alarming in view of our repeated exercise of the jurisdiction denied. Among a large number of cases, I cite only few of the more recent: Case v. Dexter, 106 N. Y. 548, 13 N. E. Rep. 449; Mack v. Insurance Co., 106 N. Y. 560, 13 N. E. Rep. 343; Kiley v. Telegraph Co., 109 N. Y. 231, 16 N. E. Rep. 75; Tarbell v. Shipping Co., 110 N. Y. 170, 17 N. E. Rep. 721; Roberts v. Baumgarten, 110 N. Y. 380, 18 N. E. Rep. 96. These were all cases in which judgment was rendered after verdict, an appeal from the judgment taken to the general term, a reversal there, and order for a new trial, and an appeal from that decision to this court, which we entertained. It is apparent that the distinguished counsel misapprehends section 190, and builds his theory on that error. The section provides that the court of appeals has jurisdiction to review upon appeal ‘every actual determination made at a general term of the supreme court’ in the cases which follow. It is ‘every actual determination,’ by whatever name it is called. In the case under review it is really an order, or an order and a judgment; and if the latter be deemed interlocutory it is none the less an actual determination of the general term, which may be reviewed by us if the Code otherwise permits. We are therefore to consider the permitted cases. The first is ‘where a final judgment has been rendered in an action commenced in either of those courts, or brought there from another court.’ An argument of more than a hundred pages shows that the judgment of reversal in the case at bar does not come within that description,-a point which a later section of the Code settles in a single line. We have only, then, to pass on to the second subdivision, which, in express terms, gives an appeal from an order granting or refusing a new trial, and read that in connection with section 1318, which provides that where a judgment had been reversed, and a new trial ordered, there can be no appeal from the judgment of reversal, but on an appeal from the order the judgment of reversal ‘must also be reviewed.’ So that, while an appeal cannot be taken from the mere judgment of reversal,...