Opinion
September 13, 1965
On May 10, 1962 plaintiff entered judgment against defendant on a jury verdict in plaintiff's favor. On May 15, 1962 defendant duly served and filed a notice of appeal from the said judgment. On February 6, 1963 defendant's motion for a new trial on the ground of newly discovered evidence was granted; the order set aside the verdict, directed that the judgment be cancelled of record, and ordered a new trial. On June 28, 1965, by a divided court, the order was reversed, defendant's motion denied, and the judgment in favor of plaintiff was reinstated ( 24 A.D.2d 507). On August 3, 1965 defendant served a notice of appeal to this court from the judgment entered May 10, 1962, as reinstated by the order of June 28, 1965, and also a notice of appeal to the Court of Appeals from the order of June 28, 1965. Plaintiff's motion to dismiss the notice of appeal to this court, dated August 3, 1965, granted. The notice of appeal is unnecessary. Defendant has a timely appeal pending from the judgment of May 10, 1962. On the appeal to this court from the order of February 6, 1963, the merits of the case were not under review and this court did not consider any of the grounds or exceptions appearing in the record entitling defendant to a dismissal of the complaint or to a new trial (other than the ground of newly discovered evidence). Beldock, P.J., Ughetta, Christ, Brennan and Hill, JJ., concur.