This action was tried by a jury, and a verdict rendered for the plaintiff.
Upon the rendition of the verdict, the defendant moved the court “upon his notes of the trial, to set aside the verdict, and for a new trial,” which motion was denied.
An entry was afterwards made in the clerk’s minutes as follows: “Motion for a new trial upon the judge’s minutes denied.”
Treating this as an order, the defendant appealed to the general term, and procured a stay upon the verdict until the appeal should be heard and decided.
The court, upon the appeal, affirmed the order, whereupon judgment upon the verdict was entered; the defendant appealed therefrom to the general term, where the judgment was affirmed.
The judgment not being for more than five hundred dollars, the defendant, to enable him to appeal from both judgment and order, ask us, under chapter 322 of the Laws of 1874, to state in an order “that there is involved some questions of law which ought to be reviewed in the court of appeals.”
The questions disposed of by the court, upon the appeal from th& judgment, are not such as to require this court to certify the case to the court of'appeals. JS"one of them bring the case within the rule laid down by us in Butterfield v. Radde (38 Sup’r. Ct. 44). The motion, therefore, so far as it relates to the judgment, is denied.
*291Upon the appeal from the order, the court decided, that where the grounds of the motion below did not appear in the order or elsewhere, the appellate court would affirm the order, without examining the alleged errors of the trial (39 Sup’r. Ct. 463).
There is, possibly, sufficient doubt of the correctness of that decision to authorize us to certify that it ought to be reviewed in the court of appeals. So much of the motion, therefore, as relates to the order affirming the order, denying the motion for a new trial, is granted.
Curtis, J., concurred.