Ely v. . Barrett

Per Curiam. On the 5th of March, 1918, leave was given to defendant to appeal from a judgment. Before a.notice of appeal was served, plaintiff made a motion at the Appellate Division, that it make findings of fact, to the effect that the damages sustained by plaintiff were due to defendant’s negligence. The motion was granted, the findings made, and a new judgment rendered to conform with such findings. After the judgment was rendered the defendant served a notice of appeal, not only from the original judgment, but from the new judgment. The plaintiff now moves for a re-argument of the motion giving defendant leave to appeal, and for a dismissal of the appeal. 1 The Appellate Division had the power, under section 1317 of the Code of Civil Procedure, for the purpose of supporting the judgment, to reverse findings made by the trial court and substitute new findings in place *551 thereof. (Rives v. Bartlett, 215 N. Y. 33; Birnbaum v. May, 170 N. Y. 314.) A new judgment was entered upon the findings unanimously affirming the judgment of the trial court. That judgment took the place of the original judgment and defendant could not appeal therefrom without leave. Leave has not been given and, therefore, the motion to 'dismiss the appeal is granted, with costs, and ten dollars costs of motion. His cock, Ch. J., Chase, Hogan, Pound, McLaughlin, Crane and Andrews, JJ., concur. Appeal dismissed.