Evans v. . Millard

Decided March 5, 1858

New York Court of Appeals · decided 1858-03-05

The plaintiffs brought an action to recover the possession of land in the city of Buffalo. It was tried at the Erie circuit, in October, 1854, when the defendants had a verdict and judgment. The plaintiffs, after offering to pay the amount of the judgment, applied to the Supreme Court for a new-trial under section thirty-seven, title one, chapter five, part three of the Revised Statutes (vol. 2, _p. 309), respecting new trials in the action of ejectment.

Decided 1858-03-05

Johnson, Ch. J.

¶1 It is entirely clear that this appeal $an-not be sustained. It is not an appeal from a judgment, but from an order. It therefore is not embraced by the first subdivision of section eleven of the Code. The order does not in *612 effect determine the action; on the contrary, it allows the action to proceed, without professing to touch, by decision, the merits. The second subdivision, therefore, does not reach it. NTor is it a final order, affecting a substantial right, made upon a summary application in an action after judgment under the third subdivision. It is not final, but directs a new trial.

¶2 The appeal must therefore be dismissed.

All the judges concurring,

¶3 Appeal dismissed