| N.Y. App. Div. | Nov 25, 1908
Lead Opinion
One of the questions presented by this appeal is whether the plaintiff' is precluded by the record from now raising the question that the court erred in not submitting any question of fact to the jury-
The rule is that where neither party requests to have any question of fact submitted to'the jury, but each asks that a verdict be directed in his favor, they waive their right to go to the jury and consent that the court shall decide every question of fact in the case. As was said by Judge Andrews in Thompson v. Simpson (128 N. Y. 283), “ The effect of a request by each party for a direction of a verdict in his favor, clothed the court with the functions
The plaintiff contends, however, that his suggestion that the question of the abandonment of the contract was a disputed fact was equivalent to a request to go to the jury upon that question. I think not. There was nothing in the suggestion or in what was said on that occasion to justify'tlie conclusion that he did not desire the court to decide every question of fact, and that he did so intend is apparent from the fact that he acquiesced in the proposed action of the' court.
If the counsel for the plaintiff supposed that there was a disputed question of fact, material to- the issue between the parties, and desired that it should be-submitted to the jury, he should have withdrawn his motion for a direction of a verdict and requested the submission of that fact to the jury. The request should have been specific so that- the court could have passed directly upon it. (Frantz v. Ireland, 66 Barb. 389; Winchell v. Hicks, 18 N. Y. 565; O'Neill v. James, 43 id. 84; Flandreau v. Elsworth, 151 id. 473, 482.)
I. think it would be torturing the language of plaintiff’s counsel to give it the effect claimed by him; but if it could be regarded as tantamount to a withdrawal of the request for a direction, and a request to go to the jury upon, the question of abandonment, there was no exception to a refusal. The exception was to the direction in favor of the defendants. If the counsel was dissatisfied with the conclusion or opinion of the court, that he would “ have to direct a verdict one way or the other,” he should have expressed his dissatisfaction by objecting or excepting to it. This he did not do. On the contrary, he apparently acquiesced in the conclusion and consented to a determination of the question suggested by the court. The exception to the direction of a verdict in favor of the defendants was not sufficient to notify the court of an objection
The trial justice is entitled to 'have his attention called to the precise thing wanted.or objected to, so that the court which reviews his decision may be clearly and distinctly apprised of the ruling complained of. If this is not done a court of review will not regard it. This rule is not too technical or severe. It has its foundation in a just regard to the fair administration of justice, which requires that when an error has been committed there should be an opportunity to correct it at once. It does not permit a party to lie by at the trial and take the chances of sncce'ss on the grounds stated by the court, and then, if he fails to succeed, avail himself of an objection wdiicli, if it had been stated, might have beemremoved. (Frantz v. Ireland, 66 Barb. 386" court="N.Y. Sup. Ct." date_filed="1873-04-01" href="https://app.midpage.ai/document/frantz-v-ireland-5462803?utm_source=webapp" opinion_id="5462803">66 Barb. 386; Tilden v. Aitkin, 37 A.D. 28" court="N.Y. App. Div." date_filed="1899-01-15" href="https://app.midpage.ai/document/tilden-v-aitkin-5185351?utm_source=webapp" opinion_id="5185351">37 App. Div. 28; Walsh v. Washington Ins. Co., 32 N. Y. 440; Chamberlain v. Pratt, 33 id. 52; Magee v. Badger, 34 id. 247; Walsh v. Kelly, 40 id. 558; Trimble v. N. Y. C. &. H. R. R.,R. Co., 162 id. 84.) “ Doubt as to the application of an exception defeats it, for a judgment should stand unless the appellant can point to a definite error raised distinctly by a specific exception.- The counsel excepting must lay his finger on the point ’ he seeks tó raise, so that neither the court nor the opposing counsel will be misled, but both may act advisedly and correct the error if on reflection, after the point is clearly presented, it is regarded asan error.” (Clark v. N. Y. C. & H. R. R. R. Co., 191 N.Y. 416" court="NY" date_filed="1908-03-31" href="https://app.midpage.ai/document/clark-v-new-york-central--hudson-river-railroad-5480043?utm_source=webapp" opinion_id="5480043">191 N. Y. 416.) “ When it is intended to except to a specific proposition or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language entirely plain, so that there can be no doubt as to the real character of the exception, or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used if he deems it proper, and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply.” (McGinley v. U. S. Life Ins. Co., 77 N.Y. 495" court="NY" date_filed="1879-06-10" href="https://app.midpage.ai/document/mcginley-v--united-states-life-ins-co-3593666?utm_source=webapp" opinion_id="3593666">77 N. Y. 495.) This practice is well settled and firmly established and the tendency is to increase strictness rather than to relaxation. (Brozek v. Steinway Railway Co., 161 N, Y. 63.) If, therefore, it be assumed that there was a request to
All concurred, except Cochrane, J., dissenting in opinion, in which Kellogg, J., concurred. ¡
Dissenting Opinion
By written contract made in the year 1900 plaintiff sold to the defendants “all tire marketable pine and red and black oak timber measuring seven inches or over, fourteen feet from the ground ” standing and growing on certain described premises of plaintiff. The defendants agreed to pay seventy cents per market log for the pine timber and one dollar and fifty cents per market log for the red apd black oak timber, and to cut and remove said timber within five years from the date of the .contract. Said contract contained the following provision: “ If at any time the parties of the second part shall abandon said contract then the said parties of the second part shall pay for all timber cut by them, and in addition thereto the said parties of the second part shall pay the-said party of the first part the further sum of $500 as' fixed and liquidated damages and not as and for a penalty.”
The defendants have removed all the pine timber. The controversy arises over their failure to remove .the oak. It is undisputed that defendants' have removed about 200 markets of oak, and according to the estimate of their witness Ackley, called by them for the purpose of showing the quantity unremoved, such quantity
The plaintiff’s witness Finch, called for the same purpose, estimated that more than 500 markets of oak remained on the premises measuring not merely seven inches as provided by the contract but eight inches in diameter fourteen feet from the ground. Plaintiff’s evidence also tended strongly to establish the fact that defendants refused to remove this oak timber although requested to do so about seven years after the contract was made.
The jury might easily have found from the evidence that defendants had failed to remove about three-quarters of the oak as required by their contract and that they had intentionally abandoned their contract because of the difficulty of performing the part so abandoned. ' The pine timber was all removed, but the oak which was obviously more difficult to manipulate and remove remained. Of course the benefit to plaintiff of this contract was not alone in the purchase price of the timber but also in having her land cleared therefrom; and the refusal of defendants to remove this oak timber, scattered as it is over 400 acres, constitutes a striking failure to perform the contract in an essential feature. The case, therefore, should have been submitted to the jury, and should not have been disposed of by the court as a question of law.
The judgment, however, is upheld on the sole ground that the plaintiff by her conduct at the close of the trial consented that the case should be decided by the court rather than by the jury. After defendants had moved for a nonsuit and the court had denied such motion, plaintiff’s counsel moved for a direction of a verdict for $500. That motion was not decided by the court, and was apparently abandoned by plaintiff. The record shows that the following immediately took place: “ The Court: What dispute of fact is there to go to the jury ? Mr. Arnold (plaintiff’s counsel): Upon the question of the abandonment of the contract. The Court: That may be a legal question. What specific fact can you ask the jury to decide % Mr. Arnold: That the defendant Palmer stated to William Kinner and his sister that he was through and there was not anything left to be lumbered under that contract; if that is true, the plaintiff is entitled to judgment. The Court: I do not see
The rule is unquestionable that if both parties at the clo'se of a case move for its disposition by the court as a matter of law they are deemed to have consented that all questions of fact as well as Law be decided by the court; but it is equally well settled that a party may recede from such motion even after it has been decided adversely to him and stand on his right to have a, question of fact submitted to the jury if he so requests. In the present instance, plaintiff’s counsel most clearly insisted that the question of abandonment was one for the jury. Such request lost none of its force because in form it was made in response to the court’s queries. The court clearly must have understood that he was insisting on his right tó go to the jury. Probably the learned trial justice would be the last one to assert that he did not so understand the situation. In fact he expressly stated and put his refusal to submit the case to the jury on the ground that the question of abandonment was a legal question. . In Koehler v. Adler (78 N. Y. 290) it is said : “ Parties may consent, however, that the court-may pass upon all questions Loth of fact and law, and if they do they will be bound, and when both parties ask a direction this court will ¡iresume such consent. In this case the presumption is repelled by an express request to go to the jury upon a question of fact. Besides the court did not put the denial to submit the question of fact to the jury upon the ground that the defendant’s counsel had irrevocably waived the right, but it was denied presumably upon the ground claimed here that the cause of action.was proved by uncontradicted evidence, and that there was no question to submit, and that point is now
I think the judgment should be reversed.
Kellogg, J., concurred.
Judgment affirmed, with costs.