Matthews v. Wood , 10 Abb. Pr. 328 ( 1871 )

By the Court.^*—McCunn, J.

This is an appeal from an order readjusting a bill of costs settled by the clerk. The action was tried before the learned chief justice and a jury. The verdict was for the plaintiff; and immediately after verdict, defendant’s counsel moved for a new trial upon the minutes of the court.

This motion was denied. The defendant appealed from the order denying a new trial, and also from the •judgment entered on the verdict; and the matter now comes before us on an appeal from the order reducing the clerk’s taxation.

The fact that the motion for a new trial was originally made on the judge’s minutes, and not on a case, does not alter or affect the costs of the appeal from the order denying the motion. By section 264 of the Code, an appeal from such an order must be heard on a case or exceptions in the usual form. Subdivision 2 of section 349 reads, “ When it grants or refuses a new trial,” &c. No distinction is anywhere taken as to how the original motion is to be made, and it must follow that the appeal from the order must be heard the same way and governed by the same rules, whether the original motion was heard on a case or not. It is quite clear that when a motion is heard on the minutes of the judge who tried the case, and decided, and an appeal taken from such decision, a case and exceptions must be settled in the usual form ; and upon that case the argument at general term must be heard. This being so, it certainly must follow that the costs on such an appeal are distinct and separate costs to those allowed on the motion for .the new trial on the minutes.

The books abound in cases showing that an appeal from an order denying a new trial is a separate and distinct proceeding from an appeal from a judgment; the latter presenting for review only questions of law, while the former enables the appellant to obtain a review of the facts as well; and although in practice the two appeals may be, and usually are, brought to a hearing at the same time and upon one set of papers, they are still none the' less ttoo appeals, separate and distinct from each other, and presenting different questions to the appellate court for review. It must follow, therefore, if there be two appeals, that there must be separate costs allowed.

The order of the special term must be reversed.

Mojtell and Ebeedmatst, JJ., concurred.

Order reversed.

* Present, Monell, P. J., and McCunn and Freedman, JJ.