Summary
In Pirkner v. Great Atlantic Pacific Tea Co. (171 Misc. 2) it was held that an order holding that a judgment in a prior action was not res adjudicata in the action under consideration and did not constitute evidence in favor of the plaintiff, was merely a ruling in the course of the trial and was not appealable.
Summary of this case from Fine v. CumminsOpinion
April 21, 1939.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Fourth District.
Leo D. Politzer [ Morris Pottish of counsel], for the appellant.
E.C. Sherwood [ Richard J. Relyea of counsel], for the respondent.
As the order appealed from is a mere ruling of the trial court it is not appealable. ( Kramer v. United States F. G. Co., 212 A.D. 644.) Subdivision 7 of section 154 of the Municipal Court Code, providing for appeal by permission from "any other order" than those specifically appealable under said section, does not warrant an appeal by permission from a mere ruling on the trial.
Appeal dismissed and cause remitted to the court below for trial.
All concur.
Present — McCOOK, HAMMER and FRANKENTHALER, JJ.