This action is to recover damages occasioned by the death of the plaintiff's intestate, alleged to have been caused by the defendant's negligence.
On the trial the plaintiff had a verdict. The defendant thereupon moved for a new trial on the ground that the verdict *Page 89 was excessive, contrary to the evidence and contrary to law. The motion was denied. The defendant appealed to the General Term of the first department from the judgment entered upon the verdict and also from the order denying its motion for a new trial. The General Term reversed the judgment and order "upon the law" and granted a new trial, with costs to abide the event.
The first question presented is whether an appeal lies to this court from such an order. The rule seems to be well settled that an order of the General Term granting a new trial in an action tried before a jury, where there is a conflict of evidence, is not reviewable here unless it appears from the record that the order denying a new trial was affirmed as to the facts or the appeal therefrom dismissed. (Chapman v. Comstock, 134 N.Y. 509,512, and cases cited.) The same doctrine is held in Mickee v. W.M. R.M. Co. (144 N.Y. 613).
As was in effect said in the latter case, the question whether the verdict was against the weight of evidence was directly raised in this case by the motion for a new trial, and the order denying the motion was brought up for review by the General Term. If this court should reverse the General Term and affirm the judgment of the trial court, the defendant would have a judgment against it without having the question whether the verdict was against the weight of evidence considered. The principle of the cases cited and of many others where the question has arisen in this court is conclusive upon this question.
Therefore, the appeal should be dismissed, unless the stipulation of the defendant, which was presented on the submission of this case, waiving any objection to the appealability of the order or judgment, justifies us in hearing and determining it. As the jurisdiction of this court is only such as is conferred by statute, it cannot be changed or enlarged by the stipulation of parties. (2 Encyclo. of Pleading and Practice, 24.) Moreover, the well-established rules of practice governing appeals *Page 90 to this court should not be changed or disregarded in individual cases, as it would render the practice varied and uncertain, and result in misunderstanding and confusion.
After due consideration of the question, we are of the opinion that the defendant's stipulation is not sufficient to justify us in entertaining this appeal. But, as the appellant asks to be allowed to withdraw his appeal without costs, we have concluded that under the peculiar circumstances of this case his request should be granted.
Application to withdraw appeal granted, without costs in this court to either party.
All concur.
Ordered accordingly.