Opinion
Argued October 7, 1920
Decided October 19, 1920
W.A. Fullerton and Harold E. Blodgett for appellant.
Arleigh D. Richardson for respondent.
This action was brought to recover damages to personal property caused by the explosion of a hot water boiler installed in the dwelling occupied by plaintiff. He had a verdict which the judge who presided at the trial, on motion of defendant's counsel, set aside and granted a new trial upon the ground, among others, of exceptions taken on the trial. From this order the plaintiff appealed to the Appellate Division, which unanimously affirmed the same, with costs, "upon questions of law only, the facts having been examined and no error found therein." The plaintiff then appealed to this court, giving the usual stipulation for judgment absolute in case of affirmance.
We have examined the record and briefs of counsel and are satisfied the decision of the Appellate Division is correct and its order, therefore, must be affirmed. We should do this without opinion were it not for the fact that upon the argument a question was raised as to the jurisdiction of this court under section 190 of the Code of Civil Procedure, to hear the appeal, no leave having been given to appeal, and no questions certified.
We hold that this court has jurisdiction to hear the appeal under subdivision 2 of such section. This subdivision provides that an appeal may be taken, as of right to this court, from an order of the Appellate Division granting a new trial on exceptions, where the appellant stipulates that upon affirmance judgment absolute shall be rendered against him. The Appellate Division affirmed the order of the trial court granting a new trial on questions of law only. This, in effect, was the same as though the Appellate Division itself had, on the exceptions taken at the trial, granted a new trial. ( Automatic Sprinkler Company of America v. Employers' Liability Assurance Corp., 221 N.Y. 552; Reed v. Belnord Realty Co., 222 N.Y. 693.) The stipulation required by the subdivision having been given, the plaintiff, as of right, could appeal to this court.
The order appealed from, therefore, should be affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.
HISCOCK, Ch. J., CHASE, COLLIN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order affirmed, etc.