56 How. Pr. 427 | New York Court of Common Pleas | 1878
This is an action for wages and for money lent. The defendant pleaded, (1st) a general denial; (2d) a former adjudication in her favor in a suit on the same demands brought against her by the plaintiff in France; and (3d) full settlement and payment in Rome.
The defendant’s counsel took various exceptions during the trial, and after the verdict, which was in favor of the plaintiff, made a motion for a new trial on the minutes, on the ground that the verdict was against the weight of evidence, and on the further ground that there was not sufficient evidence to support the verdict. The court at trial term denied the motion for a new trial, and the defendant excepted, and then appealed to the general term of the Marine Court from the judgment, and also from the order denying the motion for a new trial. The case was before the Marine Court general term in such a form that the . exceptions and the evidence all passed under the review of that tribunal, which reversed the judgment and ordered a new trial, with costs to abide the event. From the order of the general term the plaintiff appealed to this court.
The counsel for the appellant insisted upon the argument that the general term reversed the judgment on the ground that the verdict was against the evidence. That proposition
I think the same effect must be given to the acts of 1874 and 1875 as was given to sec. 11 of the Code of Procedure, and that the Court of Common Pleas, which, with respect to' the Marine Court, is the court of last resort, cannot with propriety examine the testimony taken at the trial for the purpose of determining whether the general term or the jury was right in its weighing of the evidence. Whether, under the present state of the law, it is competent for this court to review the facts on an appeal from an order of the Marine Court granting a new trial, where the action has been tried before a single judge or a referee, it is not now. necessary to determine. If this court cannot review the order appealed from, and I think it clear that it- cannot, if, as the appellant contends, a new trial was granted on the ground that the verdict was against the weight of evidence, it becomes important to determine what disposition should be made of this case. It appears that the respondent took ex-, ceptions, which were properly included in the case. One, at least, of those exceptions seems to me to be good. The general denial pleaded by the defendant put the plaintiff to her proofs. There was a direct conflict between the plaintiff and the defendant as to the rate of wages to be paid, the plaintiff claiming twenty-five dollars per month, and the defendant insisting that sixteen dollars per month was the amount agreed upon. Under these circumstances,- the justice at the trial told the jury that the burden of proof was on the defendant, and that the plaintiff’s claim was admitted. To that instruction the defendant’s counsel excepted. That the instruction was wrong, and that it must have prejudiced the defendant’s case, is obvious. For that error of the judge at the trial, the general term may very properly have reversed the judgment and ordered a new trial. The exception to that instruction -having been well taken, I think absolute judgment should be rendered against the plaintiff. (East River Bank v. Kennedy, 4 Keyes,
Charles P. Daly, Ch. J., concurred.
At the general term in January, 1879, a motion for a re-argument was made, and the following opinion was filed on Feb. 3d, 1879.
As the papers upon the appeal show that the general term of the Marine Court may have reversed the judgment of the trial term for error of fact and not for an error of law, no reargument of the appeal can possibly be necessary, as this court cannot consider the appeal upon its merits. As has been shown by the opinion of Mr. Justice Van Hoesen already delivered in this case, the statutes regulating appeals from the general term of the Marine Court to this court entirely assimulated the practice upon such appeals to that governing" appeals to the Court of Appeals. The practice in that court is distinctly laid down, that appeals must be dismissed where it appears by the return that questions of fact were legitimately before the general term, and that the evidence was such that the court may have reversed the judgment on the facts. This rule was laid down at the present general term of this court in the ease of Fay v. Hazeltine,, where the court dismissed the appeal upon the ground that the reversal of the judgment of the general term of the Marine Court may have been upon questions of fact, which conclusion was arrived at with great reluctance, as such dismissal worked a great hardship upon the plaintiff, and the court thought that there was a fair conflict of testimony, upon which the verdict of a jury should have been final. I do not think in the case at bar, however, that the judgment should have been affirmed, but that the appeal should have been dismissed and the plaintiff remitted to his new trial.
The order of the general term should be modified accordingly.
Appeal dismissed.