Opinion
Submitted November 19, 1973
Decided November 21, 1973
MOTION for reconsideration of motion to dismiss appeal granted, and upon reconsideration, appeal transferred to the Appellate Division. The Appellate Division order granting a new trial did not "necessarily affect" the final judgment as required to allow a direct appeal as of right from the judgment (CPLR 5601, subd. [d]). Accordingly, the appeal should be transferred to the Appellate Division (N.Y. Const., art. VI, § 5, subd. b; see, e.g., Ryan v. Freeman, 24 N.Y.2d 942; Adelman v. Adelman, 24 N.Y.2d 989; see, also, 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5514.02, p. 55-92). The effect, if any, to be ascribed to the prior stipulation between the parties discontinuing the appeal to the Appellate Division, is properly a question for the Appellate Division upon the transfer.