Decided: February 21, 1942.
COOK COFFEE CO., INC., PLAINTIFF-APPELLANT,
JOHN S. EWELL, DEFENDANT-RESPONDENT
On appeal from the Mercer County Circuit Court.
For the plaintiff-appellant, Cecil W. Rotzell and Wilbur L. Ross.
For the defendant-respondent, William Reich and Irving H. Lewis.
Before Brogan, Chief Justice, and Justices Case and Heher.
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The opinion of the court was delivered by
CASE, J. The appeal is from an order, made by Judge Oliphant in the Mercer County Circuit Court, granting, on the defendant's request, a new trial of the cause which had theretofore been subjected to a jury verdict for the plaintiff in the amount of $425 and costs.
For two reasons, either of which is of itself sufficient, the appellant may not prevail.
(1) An appeal lies only from a final judgment, and the order allowing a new trial is not a final judgment. Kople v. Zalon, 122 N.J.L. 422. A finality would eventuate from a judgment resulting from the new trial granted. Gaffney v. Illingsworth, 90 Id. 490.
(2) The general rule is that an application to set aside a verdict and to award a new trial is addressed to the judicial
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discretion of the trial court. An error cannot be urged against such exercise of that discretion. This is subject only to the modification stated by the Court of Errors and Appeals in the recent case of Nelson v. Eastern Air Lines, Inc., et al., 128 N.J.L. 46. The instant case does not come within that exception. A review of the testimony brought the trial judge to the conclusion that the verdict was against the great weight of the evidence and was the result of mistake or prejudice. There is nothing in this result to shock either reason or justice.
Inasmuch as the order under review is not appealable, the appeal will be dismissed, with costs.