Cook v. President of New York Floating Dry Dock Co.

The question upon this motion is, whether the judgment appealed from can be said to be an actual determination made at a general term. The issue in the case was one of fact, and that has been determined by the jury. But the defendant alleged that errors had been committed upon the trial, and also that the verdict was not warranted by the evidence. The Code directs that such questions shall be heard in the first instance at the circuit or special term, except in certain cases not material to be stated here. It contemplates that judgment shall be rendered at the special term, for it provides that, in the excepted case of a direction, that exceptions be heard in the first instance at the general term; judgment shall be, in the meantime, suspended. It follows that where such direction is not given, the judgment is to be pronounced at once, and is not to await the event of an appeal. (§ 265.) Then, by section 349, orders granting or refusing a new trial may be taken by appeal to a general term. In this case, the question whether there ought to have been a new trial on account of the rulings excepted to, *Page 231 or for the alleged want of conformity in the verdict to the evidence, has been passed upon by the general term, in conformity with these provisions. The defendant has therefore exhausted his opposition to the plaintiff's action in all the branches of the Court of Common Pleas. He has urged his defence in all the forms allowed by law in that court, and if he has any further resistance to interpose, it must be in this court. I consider that the judgment in this case was rendered at the special term, upon the coming in of the verdict. It remained to be perfected by the adjustment of the costs and the filing of a judgment roll; and, if properly stayed, it had also to await the determination of the motion for a new trial before it could be executed by final process. It was not, however, in a situation to be appealed here until the motion for a new trial had been disposed of, not only at a special term but also at the general term. The only method of approaching the general term was by one of the parties appealing from the order which the special term had made on the case. If the special term had decided the questions arising on the case in favor of the plaintiff, the defendant could have appealed, and, if again unsuccessful, the case would have been ripe for an appeal here. The first decision on this case was in the defendant's favor, but it was reversed upon an appeal by the plaintiff. That course of adjudication equally terminated the defendant's struggle in the Court of Common Pleas. It is suggested that there must be an appeal from the judgment rendered at the special term before the case can be brought to this court. But I think this cannot be maintained. After the verdict, the only questions which could possibly be litigated were those arising upon the case. These questions could not be presented to the general term by an appeal from the judgment, or in any other form than by an appeal from the order of the special term granting or denying the motion for a new trial. The jurisdiction of the general term has therefore been invoked *Page 232 in the only manner possible, and in the precise form which the law requires. An appeal from the judgment would now be a pure formal proceeding. If any provision of the Code required it to be done, it could not be dispensed with, though we might not be able to discover its utility. But I am unable to find a mandate in the Code looking to the performance of such a ceremony. The Code gives an appeal here to reverse any actual determination made at a general term in a judgment. Here is an actual determination of all the questions capable of being litigated in the case after the issue of fact had been passed upon by the jury. It was not a final determination made upon an appeal from the judgment, it is true; but the Code has no language naming such a determination as a condition to an appeal. The determination which was made at general term exists in the judgment itself; for the determination was that the judgment was not impeachable upon any of the matters arising upon the case. The motion should be denied, with $10 costs. JOHNSON, Ch. J., COMSTOCK, PRATT and ROOSEVELT, Js. concurred in this opinion; STRONG, SELDEN and HARRIS, Js., dissented, the former delivering the following opinion: