Storz v. Titcomb

Full title: PHILIP E. STORZ et al., Appellants, v. MARY A. TITCOMB, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 18, 1959

8 A.D.2d 739 (N.Y. App. Div. 1959)

Opinion

May 18, 1959

In an action to restrain the maintenance of an obstruction in a certain right of way, and to recover damages, the appeal is (1) from so much of a judgment (described in the notice of appeal as an "Order, Judgment and Decree") entered after trial as, inter alia, dismissed the complaint, and (2) from a "decision and determination" made on the trial which denied a request for a continuance of the trial upon the representation that a certain survey would become available for introduction into evidence and that a surveyor to prove the making of said survey would be produced as a witness. Judgment insofar as appealed from affirmed, with costs. No opinion. Appeal from "decision and determination" dismissed, without costs. No separate appeal lies from a ruling made during the course of a trial.

Wenzel, Acting P.J., Ughetta, Hallinan and Kleinfeld, JJ., concur; Murphy, J., concurs in the dismissal of the appeal from the "decision and determination" but dissents from the affirmance of the judgment and votes to reverse the judgment insofar as appealed from and to grant a new trial of the issues raised by the complaint and the answer, with the following memorandum:

The survey should have been admitted into evidence, and it may have been prejudicial error not to have it considered by the Trial Justice.