Snebley v. . Conner

Earl, J. This case was submitted to the jury upon conflicting evidence, and they found a verdict for the plaintiff. The defendant then made a motion for a new trial on the minutes of the judge upon all the grounds stated in section 264 of the Old Code, and the motion was denied and a formal order to that effect was entered. Judgment was then entered upon the verdict for the plaintiff, and the defendant then appealed from both the judgment and order to the General Term, and it reversed both and granted a new trial. The plaintiff then appealed to this court from the order of the General Term, stipulating for judgment absolute against him in case of affirmance of the order appealed from here. It is incumbent upon the appellant, in order to sustain his appeal, to show affirmatively that some error was committed at the General Term which this court can correct. The facts were before the General Term, and it had the power to grant a new trial upon the facts, and it may have done so. We cannot say that it did not. We cannot look *220 at. the opinion given at General Term for the reasons or grounds of the decision there pronounced. If the new trial was granted upon the facts, the decision is not reviewable here, and the appellant in such a case fails to show that the General Term committed an error of law. ( Wright v. Hun ter, 46 N. Y., 409; Sands v. Crooke, 46 id., 564; Dickson v. Broadway, etc., R. R., 47 id., 507; Downing v. Kelly, 48 id., 433; Harris v. Burdett, 73 id., 136.) In such cases we have generally dismissed the appeals, that the new trial granted might be had. But the practice in such cases has now become so thoroughly established and known, and the character of this case is such that we think -the ends of justice will be best subserved by an affirmance of the order. Order affirmed and judgment absolute ordered against the plaintiff, with costs. All concur. Order affirmed and judgment accordingly.