Battersby v. Collier
Appellate Division of the Supreme Court of the State of New York
Appeal from trial term, New York county. Action Tby Jenyns C. Battersby against Peter F. Collier. Complaint dismissed before the introduction of any evidence, on the ground that the facts stated therein did not constitute a cause of action. Motion for a new trial, on exceptions to said ruling, ordered to be heard in the first instance at the appellate division, and from that part of said order dismissing his complaint plaintiff appeals.
1Opinion of the CourtRumsey, J.
Before proceeding to the discussion of this case, it is proper to call attention to the form of the order directing the exceptions to be heard in this court in the first instance. That order provides for the service of a notice of appeal, which was entirely unnecessary and improper. Where the exceptions are ordered to be heard, as was done here, and judgment is suspended until the hearing and decision, there is nothing to appeal from. The only proceedings that can be taken are the making of a case or bill of exceptions, and bringing the exceptions to be heard in this court, and no judgment…
2Cases cited4 opinions
- Foot v. BrownNew York Supreme Court · 1811
- Ward v. ClarkNew York Supreme Court · 1806
- Battersby v. CollierAppellate Division of the Supreme Court of the State of New York · 1897
- Garr v. SeldenNew York Supreme Court · 1849
3Cited by3 opinions
- Henderson v. Credit Clearing HouseCourt of Appeals of Texas · 1918
- Craig v. Moore, Circuit Court of the 4th Judicial Circuit of Florida, Duval County1978
- Drohan v. O'BrienAppellate Division of the Supreme Court of the State of New York · 1902