Opinion
Submitted October 16, 1911
Decided October 24, 1911
Arleigh Pelham for appellant.
Louis W. Stotesbury for respondent.
This action was brought in the Municipal Court of the city of New York to recover for rent and in that court the defendant succeeded, procuring a judgment in her favor on the issues there tried, with costs against the plaintiff. An appeal was taken to the Appellate Term from the judgment, no motion for a new trial being made. The Appellate Term reversed the judgment so appealed from and ordered a new trial, with costs to the appellant to abide the event. From this order and judgment a further appeal was taken by permission to the Appellate Division, a stipulation being given by the appellant that if the order so appealed from should be affirmed or the appeal dismissed judgment absolute should be rendered against her. While there may be some question whether under such provisions as we have been able to find on that subject appellant could be required to give this stipulation for judgment absolute, that question is immaterial on this appeal. The appellant gave the stipulation without question and the respondent did not take advantage of it. The only order or judgment entered on the decision of the Appellate Division which affirmed that of the Appellate Term was one "that said determination so appealed from be and the same is hereby affirmed, with * * * costs to the said plaintiff as against the said defendant." This was not a judgment absolute against the defendant, but simply an affirmance of the order of the Appellate Term reversing the judgment of the Municipal Court and granting a new trial. Permission was granted by the Appellate Division to appeal to this court, but no stipulation was given by the appellant as required by section 190, subdivision 1, requiring that on an appeal from an order granting a new trial the appellant must stipulate that on affirmance judgment absolute shall be rendered against him.
Under these circumstances, although the respondent has not considered this question, we think that our only course is to dismiss the appeal, with costs.
CULLEN, Ch. J., GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Appeal dismissed.