In this action the plaintiff recovered a verdict-at the circuit. The defendant then made a motion for a new trial upon the minutes of the trial judge, under section ,999-of the Code of Civil Procedure, on the ground that the verdict was contrary to the evidence. That motion was denied, and, thereafter, judgment was entered upon the verdict. The defendant then appealed to the general term, both from the judgment and the order denying the motion for a new trial, and the general term reversed both the judgment and the order andgranted a new trial solely, as stated in its order, upon questions of fact. Thereafter the plaintiff appealed to this court, giving stipulation for absolute judgment in favor of' the defendant, in case the order should be affirmed.
This appeal clearly brings nothing here for review, and the practice has been so long settled that instead of dismissing the appeal, for reasons stated in Jameson v. Brooklyn. *327Skating Rink Assn. (54 N. Y. 673); Snebley v. Conner (78 Id. 218), and Kennicut v. Parmalee (109 Id. 650 ; 15 N. Y. State Rep. 515), the order should be affirmed.
We come to the conclusion to affirm the order instead of dismissing the appeal the more readily, as we are satisfied that there was no error of law upon the trial, and that upon the facts, as they appear in this record and undoubtedly exist, there could be no recovery upon a new trial. There was no evidence that plaintiff’s horses were killed by the reckless, wanton or malicious conduct of defendant’s engineer, and hence there was no basis for a recovery. Am. and Eng. Ency. of Law, Vol. 7, pp. 906, 916, 918, and cases cited.
The order should be affirmed and judgment absolute ordered against the plaintiff, with costs.
All concur, except Ruger, Ch. J., and Andrews, J. absent.