majority">By the Court.—Hilton, J.

On the trial of this action before one of the justices of the Marine Court, judgment was rendered for the plaintiff. The defendant appealed to the general term of that court, where the judgment was reversed ; and from this decision of the general term reversing the judgment, generally, and without awarding a new trial, or in any way determining the rights of the parties to the action, an appeal is brought to this court.

It is prescribed by the Code (§ 352), that when a judgment shall have been rendered by the general term of the Marine Court, the appeal shall be to this court; but it shall only “ be from an actual determination at such general term,” and as a judgment is described by section 245, to be “ the final determination of the parties in ' this action,” it seems quite clear that this case is not in a condition to be brought before us for review. There has been no actual or final determination of the rights of the parties by the Marine Court; and until such a determination is had, and the case is at an end in that court, it cannot be brought here, it being the policy of the Code to allow only an appeal to us in the same action.

Such was the construction given by the Court of Appeals to similar language under the Code (§ 11), respecting appeals to *195that court. (Swartwout a. Curtiss, 4 Comst., 415; Deane a. Northern Railroad Company, 3 Ib., 545 ; Paddock a. Springfield Fire and Marine Insurance Company, 2 Kern., 591.) And we have repeatedly held, in cases like the present, where the judgment has been reversed on appeal, that the Marine Court were clearly wrong in not awarding a new trial; and in many instances appeals have been dismissed, and the returns sent back with directions to that effect.

That court has, at general term, all the powers in reviewing a judgment brought before it on appeal, that a general term of the Supreme Court has in like cases. It may reverse, affirm, or modify the judgment, and in case of reversal may order a new trial, or instead may give a final judgment in favor of the defendant, when it can see that no possible state of proof applicable to the issues in the cause will entitle the plaintiff to a recovery. (Figamere a. Jackson, 11 How. Pr. R., 462; Edmonston a. McLoud, 16 N. Y. R., 543; Griffin a. Marquardt, 17 Ib., 28.)

Although, in the language of Judge Comstock, in the latter case, p. 33, “ it is proper to say, and to say it with great distinctness, as the opinion of this court, that extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate court should be exercised in that direction only in cases where it is entirely plain, either from the pleadings, or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the suit.”

I have no hesitation, however, in adding that this is not a case in which such a final judgment should be given.

The evidence at the trial may not have been sufficient in law to sustain the judgment; yet it is impossible for the appellate court to know that the necessary proof might not be supplied on another trial, and which it was their duty to order.

The appeal must be dismissed, and the return sent back to the Marine Court, that the proper judgment may be there given.

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