Epstein v. Schwartz & Co.

Per Curiam. This is an appeal from an order of the Municipal Court setting aside the verdict of a jury rendered in favor of the plaintiff. The only point urged by the appellant as a ground for reversal that merits any attention is, that the order fails to set a day for the trial of the action. Such an omission has been held to render the order unauthorized. Murphy v. Joline, 62 Misc. Rep. 461, 63 id. 256. The right of the Appellate Term to order a new trial in such a case was evidently not brought up or considered in those cases. The policy of disregarding technicalities in matters of practice has recently been strengthened by legislative enactments, and now under section 13"17 of the Code of Civil Procedure as recently amended the Appellate Term is authorized to reverse, affirm or modify any judgment or order appealed from and render judgment accordingly, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing; and whatever may have heretofore been the power of the Appellate Term in that respect .it is clearly defined in that section. The order is, therefore, modified by inserting therein the 1st day of July, 1913, as the day for a new trial; and, as modified, affirmed without co'sts of this appeal to either party. Present: Lehman, Bijur and Whitaker, JJ. Order modified, and, as modified, affirmed without costs.