#### Sadie Brennan, Plaintiff, *v.*The City of New York, Defendant.

Second Department,

December 5, 1907.

Appeal to Court of Appeals — reversal by Appellate Division for insuf.ficiency of evidence — facts cannot be approved or certified as correct.

If on appeal to the Appellate Division from a judgment for the plaintiff for damages, entered upon a verdict, and from an order denying a motion on the judge’s minutes to set aside the verdict and grant a new trial, which motion was made wholly or in part on the ground that the verdict is against the weight of evidence, or contrary to the evidence, both the judgment and the order are reversed'by the order of .the Appellate Division, such order of reversal is not appealable to the Court of Appeals.

In order that the order of reversal of the Appellate Division maybe appealable to. the Court of Appeals, it must affirm on the facts the order denying the motion for a new trial on the minutes, either in so many words, or in some equivalent way, such as by the certificate sometimes put in the order, that the order “ is reversed oh exceptions only, the facts having been examined and no error ,found'therein.”

When the judgment for the plaintiff and the order denying the motion on the min/ utes are reversed on an exception to a denial of a motion at the close to dismiss, or to direct a verdict for the defendant, made on the ground that there is no evidence to support a verdict for the plaintiff, the order of reversal cannot affirm on the facts, and a motion to amend it so that it shall do so and thus enable an appeal to be taken to the Court of Appeals, must be denied.

*8Motion by the plaintiff, Sadie Brennan, for an amendment of an order of the Appellate Division of the Supreme Court, reversing a judgment theretofore entered in her favor, and an order denying the defendant’s motion for a new trial made upon the minutes.

*Robert Stewart,*for the motion.

*James*W. *Covert,*opposed.

Gaynor, J.:

This is an action for damages for negligence. The plaintiff recovered a verdict, but the judgment and the order denying the motion for a new trial on the minutes have been reversed by us and a.new trial granted, on the ground that the motion of the defendant at the close to dismiss should have been granted, and that the exception to the denial thereof is good. The plaintiff now moves us to' amend our order of reversal so as to make it certify that the reversal is “ upon the law solely, the court having examined the facts and found no error therein”, so that she may appeal to the Court of Appeals.

In a case like this, *i. e.,*of a judgment on a verdict, .an appeal may come here in three ways, *first,*from the judgment only, which appeal brings up questions of law raised by exceptions only *(Boos*v. *World Mut. L. Ins. Co.,*64 N. Y. 236, 242; *Third Ave. R. R. Co.*v. *Ebling,*100 id. 101); *second,*from the order denying the motion for a new trial on - the minutes only, which appeal may bring up questions on exceptions only, or on the facts only, or the ground that the verdict is contrary to law in a particular not raised by an exception—-for some questions of law may be raised on such a motion, and reviewed by us on appeal from the order, but not by ' the Court of Appeals, without an exception *(Tate*v. *McCormick,*23 Hun, 218; *Standard Oil Co.*v. *Amazon Ins. Co.,*79 N. Y. 506; *Bishop*v. *Autographic Reg. Co.,*19 App. Div. 268; Weizinger *v. Erie R. R. Co.,*106 id. 414; *Allen*v. *Corn Exchange Bank,*181 N. Y. 282); or on all of these grounds, dependent on the grounds on which the motion was made, for Such a motion may be made “upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law ”, or on all df these grounds (Code Civ. Proc. § 999) — *9and the appeal presents only the grounds shown by the record to have been raised on the motion *(Walsh*v. *Mead,*8 Hun, 387; *Hinman*v. *Stillwell,*34 id. 178; *Dodge*v. *Mann,*85 N. Y. 643); and, *third,*from both the judgment and the order (as is the case before us).

In the last casej *i. e.,*an appeal to us both • from the judgment and the order, our order of reversal is therefore not appealable to-the Court of Appeals if it reverse both the judgment and the order, unless the record show that the motion on the minutes was on exceptions only, for the Court of Appeals has not jurisdiction to review orders of the Appellate Division granting new trials *generally,*but only *“*orders granting new trials on exceptions ” (Constart. 6, sec. 9; Code Civ. Proc. secs. 190, 191; *Allen*v. *Corn Exchange Bank,*181 N. Y. 278).

But if the record show that the motion on the minutes was made on the ground of excessive or insufficient damages, or that the verdict was against the weight of evidence, or that the evidence did not support it, or that it was contrary to law in a particular not raised by an exception, then the Order must be affirmed by us in that particular, while we reverse the judgment, in order to make our order appealable to the Court of Appeals; for in that case the record would show that we reversed on exceptions only.

An order by us reversing both the judgment and the order being thus not appealable to the Court of Appeals, where the motion on the minutes is made on grounds other than exceptions, or in addition to exceptions, our record should show that we affirm the order on all the grounds other than the exceptions in order to make our order appealable. It is not enough that it shows that we reverse the order on exceptions only; it must show that we have reviewed and affirmed it in the other respects ; for otherwise it could not be known but that we would have reversed it in such other respects if we had considered them; and if the case could go up on appeal from us in that condition, and our order should be reversed and the judgment of the trial court reinstated, the respondent would thus finally lose without having had such other questions, including the question of the weight of evidence, reviewed by us at all.

Now, in the case before us the motion for a new trial on the minutes was made by the defendant on all of the grounds specified in sec*10tion 999 of the Code of Civil Procedure, and denied. It therefore follows that we must affirm the order on all-grounds other than the exceptions in order to make our order appealable. After considering all of the questions presented, we have reversed on the ground that the evidence was insufficient to go to the jury — that, there is no evidence to support the verdict. There was a motion by the defendant for a dismissal at the close of all the evidence, and an exception taken to its denial. The judgment and order are both reversed on that exception. Can we say that except for that exception we would have affirmed the order? 3STo,, because even if .there were no such exception it would have been the duty of the trial judge to grant the motion for a new trial on the minutes (one of the grounds on which it was made being that the verdict was contrary tó the evidence and the law), and for us to review and reverse his order refusing to do so; for where there is no evidence to support a verdict, that error, in the absence of an exception to a denial of a motion to dismiss or to direct a verdict, is nevertheless presented by the motion on- the minutes on the ground that the verdict is against-the law,-or. the evidence *(Beckwith*v. *N. Y. C. R. R. Co.,*64 Barb. 299; *Shearman*v. *Henderson,*12 Hun, 170; *Lucas*v. *McEnerna,*19 id. 14; *Kelly*v. *Frazier,*27 id. 314; *Weizinger v. Erie R. R. Co.,*106 App. Div. 414; *Algeo*v. *Duncan,*39 N. Y. 313; *Allen*v. *Corn Exchange Bank,*181 id. 282). In such a case our reversal of the order would not be on- an exception, and therefore would not bo appealable. But in a case where there is sucli an exception, our reversal is upon an exception. Does that make it appealable ? Evidently not, unless we first assume a thing we have decided to the contrary (and probably could not really make ourselves assume,- however hard we might try to delude ourselves to the contrary), *i:e.,*that the evidence was sufficient- to go to the jury, and then decide on that assumption that the verdict was not against.the weight of evidence, and affirm the order on that head or ground; for otherwise the. weight of evidence will never be considered if our order of reversal should be reversed and the judgment affirmed. It is plain that in such a case we could not affirm on the facts, and therefore that it is not a case where :an appeal can. be had from otir order of reversal.

As was repeated in a recent case, “ under the present limitation *11of the Constitution, in no case tried before a jury in which a motion for a new trial has been. made on the ground that the verdict is against the evidence can we entertain an appeal from the order unless it affirmatively appears that’ the Appellate Division lias affirmed the facts ” — which I suppose must mean ■“ on ” the facts to mean anything *(Allen*v. *Corn Exchange*Bank, 181 N. Y. 278). The decisions to the same effect are collected in *Mr. Cardoso's*scientific and careful book on the subject of the jurisdiction of the Court of Appeals (§ 19). It should not be overlooked that a mistake was made in *Reich*v. *Dyer*(180 N. Y. 107), and that the decision there is overruled by that in *Allen*v. *Corn Exchange Bank (supra).*The rule becomes plainer on reading these two cases together. As . to the opinion in *Albring*v. *N. Y. C. & H. R. R. R. Co.*(174 N. Y. 179), I suppose I may say that I am not certain that I understand its meaning at all.— and my doubt in that respect is increased by the opinion in *Allen*v. *Corn Exchange Bank.*

The motion should be denied.

Jenks, Hooker, Rich and Miller, JJ., concurred. •

Motion denied.