#### Frances C. Duryea and Others, as Executors, etc., of William Duryea, Deceased, Plaintiffs, *v.*Eugene Zimmerman and Others, Defendants.

Second Department,

January 24, 1908.

Appeal to Court of Appeals — rules as to appealability of orders of reversal made by Appellate Division.

There are two rules governing the appealability of orders of reversal made by the Appellate Division.

*First.*If the order of the Appellate Division reverse a judgment entered upon a verdict of a jury and the order denying the motion on the minutes for a new trial, itis not appealable to the Court of Appeals. The Appellate Division must affirm on the facts the order denying the motion for a new trial in order to make *806
      *its order*appealable. In practice this is sometimes done by incorporating in the order of- reversal a certificate that the Appellate Division has “ examined the facts and found no error therein ” and the Oourt of Appeals accepts an order of reversal-containing this certificate as equivalent to an order affirming on the facts the order appealed from and reversing it on exceptions only.

*Second.*If the order of the Appellate Division reverse a judgment in a case where there is no jury trial, the reversal is presumed to be on the law only unless it - contain the formula that it is both on the law and the facts; so that unless it be on the law and ,the facts no special formula is necessary, but simply a reversal.

Motion by the plaintiffs, Frances C. Duryea and others, as executors, etc., to resettle and amend an order of reversal granted by the Appellate Division. (See 121 App. Div. 560.)

*Robert B.*Honeyman, for the motion.

*Rush Taggart*and *Griggs, Baldwin & Baldwin,*opposed.

Gaynor, J.:

The plaintiffs had a judgment for damages upon a verdict. We reversed such judgment, and also the order denying the motion on the minutes for a new trial. The- plaintiffs now move that we amend our order to read that the ^reversal is “upon questions of law only”. The professed object of this is to enable the plaintiffs to appeal to the Oourt of Appeals, but in this the learned counsel for the plaintiffs is entirely mistaken. The addition of these words to our order would not make it appealable to the 'Court of Appeals; and if wé were to add thereto, “and.not on the facts”, the effect would not be enlarged or changed. As the Court of Appeals has often pointed out, and as we have been at much pains recently to point out in the case of *Brennan*v *City of New York*(123 App. Div.*7),*where a judgment in an action at law, and the - order denying the motion on the minutes to set aside the verdict and for a new trial-,"are reversed and a new trial granted by us, our order of reversal is not appealable to the Court of Appeals unless it show that we affirm on the facts the order denying the motion for a new trial, for the- Court of Appeals-is without jurisdiction to entertain such an appeal except on exceptions (Const. art. 6, sec. 9; Code Civ. Proc. sec. 190 *et seq.),*and will not do so tlién unless it appear by the record that we have reviewed. *807the case on the facts and affirmed thereon. In equity cases if our order of reversal do not contain the formula that the reversal is on both the law and the fact¡s, it will be presumed on appeal to be -on the law only, and will be reviewable by the Court of.Appeals, but if it contain such formula it Will not be reviewable unless the Court of Appeals find upon examination that in fact there was no question of fact on which the reversal could have been made by us, which would of course falsify the statement in our order that wé reversed on the facts *(Hirshfeld*v. Fitzgerald, 157 N. *Y.*166). These are therefore the two simple rules in respect of the appealability of our orders of reversal to the Court of Appeals, viz.: 1. If our order revérse a judgment entered upon a verdict óf a jury, and the order denying the motion on the minutes for a new trial, it is not appealable to the Court of Appeals. It must affirm on the facts the order denying the motion for a new trial in order to be appeal-able. In practice this is sometimes done by incorporating in our order of revérsal a certificate that we have “ examined the facts and found no error therein”, and the Court óf Appeals accepts an order of reversal containing this certificate as equivalent to an order affirming on the facts the order appealed from and reversing it on exceptions only. 2. If our order reverse a judgment in a case w-here there was no jury trial, the reversal is presumed to be on the law.only unless it contain the formula that it is both on the law and the facts; so that unless it be on the law and the facts, no special formula is necessary, but only a simple reversal.

It is difficult to see how there can be any confusion of these two rules, the one for cases of jury trials, and the other for cases of trials without a jury; and yet the records of our courts.-fully attest that such confusion has long persisted and still persists at the bar.

The motion should be denied.

Jenks, Hooker, Rich and Miller, Jj., concurred.

Motion denied.