48 Barb. 339 | N.Y. Sup. Ct. | 1867
It is objected by the respondent, preliminarily, that it does not appear from the printed case that a motion for a new trial on the exceptions had been made in the county court, and that the appeal should therefore be dismissed. This objection is based upon the decision in the case of Simmons v. Sherman, (30 How.Pr. 4,) which coincides with a decision to the same effect in Carter v. Werner, (27 How. Pr. 385,) in which it is held that no appeal to this court upon a case or exceptions made on a trial in the county court upon appeal from a justice’s court should be entertained until the county court has passed upon the questions presented by such case or exceptions, upon a motion for a new trial made thereon in that court. In conflict with these cases—both general term decisions—the former in the third and the latter in the fifth district, the court in the sixth district, in Monroe v. Monroe, (27 How. Pr. 208,) in Whitney v. Wells, (28 id. 150,) and in Boughton v. Mitchell, (29 id 68,) have held that this court, upon appeal from a judgment of the county court, can review the errors brought up by the record, including those contained in a case or exceptions. The same question was passed upon in this court in the case of Dixon v. Buck, (42 Barb. 72,) in which my brethren held, in accordance with the cases in the sixth district. We must therefore adhere, of course, to our own decision on the point; but if - the question were a new and an open one, I should greatly prefer to follow the rule or construction of the statute adopted in the cases of Simmons v. Sherman, and Carter v. Werner, among others, for these two reasons : 1st, because such rule would probably, in a great variety of cases, obviate the necessity of reviewing the case at all in this court. 2d, because it is most fair and expedient to allow the county judge who has tried the cause the same opportunity to correct the errors he may have made in the haste and pressure of a trial that is possessed by the judges of this court. I have no doubt that the county judges would in a large proportion of the cases thus presented to them review their own decisions
Upon the merits of the case I think no error occurred on the trial, or none of any consequence. The case was fairly submitted to the jury, upon the question of the plaintiff’s and defendant’s negligence, and this court cannot upon any sound principle, in view of the present state of opinion in the Court of Appeals upon this class of questions, interfere with the verdict of the jury, upon this question. The defendant was liable for the negligence of digging the hole in the street and leaving the same open and unprotected or unguarded, within the cases of Blake v. Ferris, (5 N. Y. Rep. 48,) Pack v. The Mayor, &c. (8 id. 222,) Kelly v. The Mayor, &c. (11 id. 432,) and The City of Buffalo v. Holloway, (7 id. 493,) and the plaintiff having hired the wagon injured, and being in the possession of and using it, was entitled, as a bailee thereof, to recover damages for the injury thereto. (Edw. on Bailments, 142. Story on Bailments, 93. Faulkner v. Brown, 13 Wend. 63.)
The question put to the witness Gordon, whether he had watered horses and seen others water horses at the place in question, was not improper. It was directed to the question of his negligence, which was a question to' be affected by the practice and custom of watering horses at that place. The question how much less the horse was worth by reason of the injury, was not improper. It was a question of opinion in respect to the value of the horse before and after the injury,
I think the judgment should be affirmed.
Judgment affirmed.
Welles, E D. Smith and Johnson, Justices.]
