Brown v. Simmons

Van Hoesen, J. — The rule that we apply in determining whether to dismiss the appeal, or whether to give judgment absolute against the appellant, where an appeal is taken to this court from an order of the General Term of the City Court that grants a new trial, may be found in the cases of Tisdale v. Murray (9 Daly 446), Sands v. Crooke (46 N. Y. 569), and Harris v. Burdett (73 N. Y. 136). [457] If the appeal is submitted to us for decision, we affirm the order, and give- judgment absolute against the appellant, whenever we' discover in the record an exception that is' sufficient to warrant the order for a new trial,- and this we do, even though the exception may not have been noticed by the City Court. But when, as in this case, the appellant discovers his mistake in appealing to this court, and at.the argument, or before the argument, asks permission to withdraw the appeal, we dismiss the appeal on payment of costs, where there is no doubt of the appellant’s good faith in taking the appeal (Mackey v. Lewis, 73 N. Y. 382). J. F. Daly, J., concurred. Appeal dismissed, on payment of costs of appeal.