Streep v. McLoughlin

McAdam, J. No appeal lies to this court from an order of the City Court either grantihg or denying a new trial on the ground of newly-discovered evidence. Lesser v. Wunder, 9 Daly, 70, 72; Langer v. Gross, 31 Misc. Rep. 266; Scoville v. Landon, 50 [166] N. Y. 686; Dalrymple v. Hannum, 54 id. 654; Meltzer v. Doll, 91 id. 365; Baylies, N. Tr. & App. 234. The appellants claim that, even if this court cannot review the propriety of the order in so far as it denies the application for a new trial, it has authority to correct an unauthorized award of costs by the -court below. The General Term affirmed the order (i with costs and disbursements.” The appellants contend that, under subdivision 2 of section 3239 of the Code of Civil Procedure, which provides that “ Where an appeal is taken from an order, refusing a new trial, and an appeal is also taken from the judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order,” the costs were not allowable. This provision applies to an order denying an application for a new trial on the minutes, which, like the order of that character made on the trial herein, is embraced in the same notice as the appeal from the judgment, printed in the same book, and there was consequently but one bill of expense, and one bill of costs allowed to cover both appeals. This satisfied the Code provision cited. . The appeal from the order, made on the motion for a new trial on the ground of newly-discovered evidence, was, on the other hand, an application independent of the trial itself, and did not depend for its success upon the accuracy or inaccuracy of the judgment. The appeal was taken, independently of that, from the judgment, and subsequent to that appeal. The appeal-book on this motion was printed separately, and á separate set of points was required from the respondent in answer to this particular application, the expense of which is not covered by the. costs allowed under said Code provision. It was not error, therefore, for the General Term to impose “ costs and disbursements ” on affirming said order, and it properly denied the motion for a resettlement of its decision. The amount of costs taxed under the order does not appear, and we must assume that they were legally taxed. There being nothing but a lawful exercise of discretion by the court below, the appeal must be dismissed, with costs. Breed maw, P. J., and Gildeksleeve, J., concur. Appeal dismissed, with costs.