This motion involves an appeal brought under section 1336 of the Code of Civil Procedure, which we have considered as to one of its phases in a decision filed herewith. (Will v.Barnwell, 197 N.Y. 298.) In that case we had before us an appeal of the first class, provided for in that part of the section relating to interlocutory judgments. We now have before us an appeal of the second class, or one taken from a judgment rendered by the court at nisi prius directly to the Court of Appeals "after the refusal, by the Appellate Division, of a new trial, either upon an application, made, in the first instance, at a term thereof, or upon an appeal from an order of the special term, or of the judge before whom the issues, or questions of fact, were tried by a jury."
The learned counsel for the plaintiff contends that the appeal is unauthorized because the Appellate Division did not refuse a new trial, but simply reversed an order of the Trial Term which granted a new trial. In taking this position he relies upon form rather than substance, for the effect of the determination of the Appellate Division is that a new trial was refused. The object of the section, so far as it relates to the subject now in hand, is to authorize an appeal from a *Page 304 final judgment rendered by the court of original jurisdiction, after the refusal directly or indirectly by the Appellate Division of a new trial, without appealing, for the second time and upon the same question, to the Appellate Division and from the final judgment there rendered to the Court of Appeals. We think the appeal was authorized because within the spirit of the section. A new trial was in effect refused by the Appellate Division when it reversed an order which had granted a new trial. It decided that a new should not be had, and this was a refusal of a new trial within the meaning of the section, and we have so held. (South Bay Company v. Howey, 190 N.Y. 240, 245; RidgelTaylor Co., 196 N.Y. 556.)
The motion should be denied, with ten dollars costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Motion to dismiss appeal denied.