the rights reserved to the prop-
erty owners under the act of 1867,
without compensation. Held, that
the order appealed from did not
come within the provision of the
Code of Civil Procedure ($ 190,
subd. 2), making, in certain con-
tingencies, an order adjudging a
statutory provision of the state
unconstitutional, appealable to
this court; that said provision re-
lates only to orders in an action
affecting a substantial right, and
not resting in discretion. Id.

6. The provision of the Code of Civil
Procedure (1361), which declares
that appeals from determinations
in special proceedings are governed
by the provisions of said Code,
and the general rules of practice
relating to "an appeal in an action,
except as otherwise specially pre-
scribed by law," applies to ap-
peals to the General Term of the
Supreme, or of a superior city
court, not to appeals to this court.
Id.

7. Where the General Term has
power to hear and decide an appeal
from an order, the order it makes
is within its jurisdiction, even
though an erroneous reason be
given for its exercise.
Id.

8. This court cannot review an exer-
cise of the discretion of the General
Term in granting or refusing a new
trial in a criminal case. People v.
Most.
108

9. The effect of a request by both
parties upon trial of an action for
a direction of a verdict in his favor
is to clothe the court with the func-
tions of the jury; if the party,
whose request is denied, does not
thereupon request to go to the jury
on the facts, a verdict directed for
the other party stands, as would
the finding of a jury for the same
party in the absence of any direc-
tion, and the review, upon appeal
to this court, is governed by the
same rules as apply in cases of ver-
dicts rendered without direction;
all controverted and inferable facts
will be deemed conclusively estab-
lished in favor of the party for
whom the verdict was directed.
Thompson v. Simpson.

270

a reduction of a judgment and an
affirmance for the reduced amount,
if plaintiff consented to the re-
duction, which he did, held, that
of this defendants could not com-
plain. Carter v. Beckwith.

312

dice to a future action to recover
the same or any part thereof," and
in case of such consent, affirmed
the judgment. Plaintiff consented
and the judgment as modified was
affirmed. Upon appeal by defend-
ant, held, that plaintiff would not
be heard to insist that the original
judgment was correct, but it was
to be assumed that it was errone-
ous, at least to the extent indicated;
also that the court had no power
to grant plaintiff the privilege to
sue again to recover the amount
deducted; and so that defendant
was entitled to a reversal and new
trial. Lawrence v. Church. 324

12. The parties entered into a verbal
contract by which plaintiff agreed
to occupy a portion of defendant's
farm for a period of five years,
each to do certain work and furnish
certain things specified, the re-
ceipts of sales of the products of
the land to be equally divided.
Plaintiff took possession of the
premises and occupied for over
two years, when he was dispos-
sessed. In an action to recover
damages for breach of the agree-
ment defendant claimed and the
referee found that it was void, as
it was not to be performed within
a year. The referee, however,
gave judgment in favor of plain-
tiff on the ground that a former ad-
judication was conclusive against
defendant. Plaintiff's counsel
claimed that as the Statute of
Frauds was not pleaded and no
point with respect to said agree-
ment made upon the trial, the
defendant could not raise that
question on appeal. Held, un-
tenable; that an exception to
the finding of the referee that
plaintiff was entitled to recover
damages upon an agreement held

17. The executors and trustees under
the will of T. brought an action
for its construction, asking the
court to determine which of two
parties was entitled to a certain
fund in plaintiffs' hands as trustees.
The judgment rendered decided
the question, and this was ac-
quiesced in by both of the alleged
claimants to the fund, who were
parties and were of age. Held,
that as under the Code of Civil
Procedure (§ 1294) the right to
appeal is limited to "a party ag-
grieved," and as plaintiffs were
not aggrieved by the judgment
within the meaning of said Code,
they were not entitled to appeal.

Id.

18. Where, in an action by an abut-
ting owner to restrain the opera- |

tion and maintenance of an ele-
vated railroad in a street, the
question as to the fee value of the
property rights of which plaintiff
is deprived by the unlawful struc-
ture is gone into for the purpose
of determining the amount to be
paid by defendant for a convey-
ance of those rights, the defendant
is entitled to claim that the investi-
gation shall be made upon compe-
tent and legal evidence, and if im-
proper evidence is admitted, to its
damage, it has the right to ask the
appellate court for relief; it is no
answer that defendant is not bound
to avail itself of the privilege
granted of paying the amount of
damages found for a conveyance
of the easements, but may submit
to an injunction. Roberts v. N. Y.
E. R. R. Co.

455 *

19. In an action by an abutting
owner to restrain defendant from
the maintenance and operation of
its elevated road in a street, the
judgment of the trial court granted
an injunction unless defendant
paid a sum fixed as the damages
to the fee, upon receiving a convey-
ance from plaintiff of the easements
taken, in which case it was denied.
It was claimed here that the whole
judgment should not have been re-
versed because of error in admit-
ting improper evidence bearing
upon the question as to the dam-
ages to the fee, but that the por-
tion which awarded the injunction
should be permitted to stand.
Held, untenable; that the question
as to the granting of the injunc-
tion was dependent upon the
amount of damages, as unless the
court had found them to be sub-
stantial, it could, in the exercise
of its discretion, have withheld
the injunction and left plaintiff
to his remedy at law; also that it
was discretionary with the court
either to reverse in whole or in
part. Gray v. Manhattan R. Co.

499

20. It is generally in the discretion
of the court, when it finds error in
part of a judgment requiring a
reversal of that part, to reverse the
whole judgment, and such discre-
tion will not, except under peculiar
circumstances, be interfered with
upon appeal to this court. Id.

25. In proceedings by habeas corpus
it appeared that the relator was
convicted of the crime of murder
and sentenced to death; that he
appealed to this court where the
judgment was affirmed; that after
the appeal he was taken to state
prison and there detained in close
confinement. One ground upon
which the prisoner's discharge
was asked was that he had been
once punished by imprisonment.
Held, untenable; also that if the
appeal operated to stay the con-
tinuance of the close confinement
as well as the execution of the
death penalty, then his subsequent
imprisonment was unlawful, and
the convict could not elect to sub-
mit to it and then treat it as a sat-
isfaction of the sentence. Id.

27. It is not error for a court to re-
fuse to embody the language of
an elementary writer in a charge
to the jury; the trial judge may
select the words in which he
chooses to express his views of the
law, and unless he lays down in-
correct propositions, or refuses to
instruct them as to pertinent, ma-
terial and necessary points, there
is no error calling for the interpo-
sition of an appellate court. Id..

28. A decision of the General Term
of the Supreme Court, rendered
upon report of commissioners ap-
pointed to appraise lands in pro-
ceedings to acquire title thereto
under the Rapid Transit Act (Chap.
606, Laws of 1875) is not review-
able in this court. In re Met. E.
R. Co.

600

32. A motion for judgment of affirm-
ance or to dismiss an appeal, based
on the ground that only the same
questions arise therein which have
been passed upon by this court in
other cases lately decided, will not
be granted where this is denied by
the appellant. Clark v. Claflin.

87

610