¶1The question involved is a novel one. Many considerations have been advanced for and against the right to a new trial in a case like the present under the provisions of the Code of Civil. Procedure in force at the present time. The question can only be settled by the Court of Appeals and it is important that it should be settled. As the learned judge who made the order appealed from, rendered a well considered opinion, I think it is best, especially in view of the rulings of the Court of Appeals in Godfrey v. Moser, 66 N. Y. 250 ; Hiscock v. Harris, 80 lb. 402, and Conklin v. Snider, 104 lb. 641, as to the effect to be given to the stipulation for judgment absolute filed by an appellant to that court, that the order should be affirmed.
¶2Order affirmed with ten dollars costs and disbursements.
¶3Truax and Ingraham, JJ., concurred.