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Thomas F. Fahey v. Thomas P. B. Kennedy and Another, Doing Business under the Name, etc., of Kennedy Brothers and Also under the Name of Kennedy Garage
Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs, on the ground that in a civil action commerced in a City Court this court has no jurisdiction under subdivision 1 of section 589 of the Civil Practice Act to grant a motion to allow an appeal from an order granting a new trial, but is restricted thereunder to an appeal “ from a final judgment or order of the Appellate Division.” (See, also, N. Y. Const, art.
VI, § 7.) It would seem that it may not even certify a question under subdivision 4 of section 588 of the Civil Practice Act, since that subdivision was 800 intended to apply to cases where the appeal is not given as matter of right (Mund v. Glokner, 160 N. Y. 571) and that the defendants have the absolute right to appeal by stipulating for judgment absolute under subdivision 2 of section 588 of the Civil Practice Act. Van Kirk, P. J., Hinman, Hill and Hasbrouek, JJ., concur; Davis, J., not voting.