#### Michael J. Derleth v. Harry P. DeGraff *et al.*

*(Court of Appeals,*

*Filed January*25, 1887.)

Appeal — To court of appeals — Order of affirmance by general TERM IS MERELY AUTHORITY FOB ENTRY OF JUDGMENT OF AFFIRMANCE.

Before the entry of any judgment of affirmance, the defendant’s attorney served a notice of appeal to the court of appeals from the judgment entered at the trial term and from an order of the general term affirming that judgment and an order made by the trial judge denying a motion for a new trial.

*Held,*that the appeal was unauthorized, that the order of the general term was simply an authority for the entry of the judgment of affirmance, that the judgment should first he entered and an appeal brought from that.

MOTION for reargument.

*James R. Marvin,*for *appl’t; Nelson Smith,*for resp’t.

Per Curiam :

-At a prior term of this court a motion was. made to dismiss tlie appeal in this case, upon the ground that it was unauthorized; and that motion was granted. This is a motion for a reargument of the prior motion. We have carefully reconsidered the matter, and are of opinion that no error was committed.

The action was tried before a jury and a verdict rendered in favor of the plaintiff. After the verdict the defendants made a. motion before the trial judge, upon his minutes, for a new trial;, and an order was entered denying that motion. Judgment was then entered in favor of the plaintiff.

Thereafter a case containing exceptions was settled and the defendants appealed to the general term from the judgment and also from the order denying a new trial: and the general term affirmed both the judgment and the order. Then, before the. entry of any judgment of affirmance, the defendants’ attorney served a notice of appeal to this court from the judgment entered at the trial term, and also from the order of the general term affirming the judgment and the order denying the defendants’ motion for a new trial.

The case of *Kilmer*v. *Bradley,*80 N. Y., 630, is a precise authority for holding that the appeal to this court from the order-affirming the judgment was unauthorized. Such an order is simply an authority for the entry of the judgment of affirmance. That judgment should first be entered, and an appeal brought from that.

But it is claimed that the defendants had a right to appeal to the court from the order of the general term, so far as it affirmed the order of the trial judge denying the motion for a new trial.

We think otherwise. The appeal from that portion of the order could bring no question to this court which was not involved in the affirmance of the judgment. Upon such an appeal, *620we could entertaiu it, we could review only questions of law raised upon tbe trial, and those questions would be involved upon an appeal from the judgment to be entered upon the order of affirmance. Under such circumstances an appeal from the order affirming the order which denied a new trial would be entirely nugatory. If that order should be affirmed, the defendants would still have the right, after entry of judgment of affirmance, to appeal from that and try the experiment upon that appeal of procuring a new trial by reversal of the judgment. If the appeal from the order affirming the order which denied the motion for a new trial should be successful the judgment would still stand, affirmed, unappealed from, and thus nothing would be gained by the defendants if successful upon the appeal which they claim the right to make without the further interference of the court.

To uphold such au appeal is trifling with the forms of law. Orderly practice requires that a judgment of affirmance should be entered and that the appeal should be takeu from that; hence, this is not such an appeal from an order which grants or refuses a new trial as is contemplated by section 190 of the Code; and,

The motion should be denied, with $10 costs.

All concur.