#### Andrew Powell, Appellant, *against*Hugh Lamb *et al.,*Respondents*.*

(Decided Febuary 4th, 1889.)

Upon an appeal from an order of the General Term of the City Court of New York affirming an order of a Trial Term of that court granting a new-trial, the ground of such affirmance was not indicated by the order, but it appeared that, upon all the evidence, which was before the General Term, the new trial might have been granted on questions of fact. *Held,*that the order could not be reviewed in this court, and must be affirmed, and judgment absolute ordered against appellant on his stipulation.

Appeal from an order of the General Term, of the City Court of New York affirming an order of that court granting a new trial.

The facts are stated in the opinion. ■

*Scott*Lord, for appellant.

*Charles H. Mundy,*for respondents.

*140Allen, J.

This is an appeal by plaintiff from an order of the General Term of the City Court affirming an order of the Trial Term setting aside the verdict of a jury in favor of the plaintiff, and granting a motion for a new trial upon the minutes.

The action was brought for brokerage for the sale by the plaintiff of real estate belonging to the defendants. The answer is substantially a general denial. The issue was submitted to the jury, who rendered a verdict in favor of the plaintiff for the amount claimed. The defendants thereupon .moved to set aside the verdict, and for a new trial, upon the minutes and exceptions, which motion was granted. The order of the court below, however, does not indicate whether the order of the Trial Term was affirmed because the verdict was against the weight of evidence, or because upon the undisputed facts the plaintiff was not entitled to recover; yet all the evidence was before the General Term for review, and the character of the evidence was such that a new trial might have been granted on questions of fact.

It is well settled tltat an appeal to this court from the City Court will not be entertained when the court below has ordered a new trial in a cause tried by a jury, where any material and controverted question of fact was involved, and the court granted or might have granted a new trial upon such question of fact *(Harris*v. *Burdett,*73 N. Y. 136). As in this case a new trial may have been ordered on the ground that the verdict was against the evidence, the order appealed from is not reviewable by us.

The rule applied in this court, where an appeal is taken from an order of the General Term of the City Court that grants a new trial or affirms an order of the Special Term granting a new trial, in determining whether to dismiss the appeal or to give judgment absolute against the appellant, will be found in *Brown*v. *Simmonds*(14 Daly 456); *Tinsdale*v. *Murray*(9 Daly 446); *Harris*v. *Burdett*(73 N. Y. 136); *Sands*v. *Crooke*(46 N.Y. 569); *Mackay*v. *Lewis*(73 N. Y. 382.) If the appeal is submitted to us for decision, we affirm the order and give judgment absolute against the appellant, whenever we discover in *141the record, as we do in this case, grounds sufficient to warrant the order for a new trial. But where the appellant discovers his mistake in appealing to this court, and, at the argument or before the argument, asks permission to withdraw the appeal, we dismiss the appeal on payment of'costs, where there is no doubt of the appellant’s good faith in taking the appeal.

Applying this rule in the case under consideration, the order appealed from must be affirmed and judgment absolute ordered against the plaintiff under the stipulation.

Order affirmed, and judgment absolute ordered for defendants.