Monaco v. Lange

130 N.Y.S. 581 | N.Y. App. Div. | 1911

Miller, J.:

This is an action for'personal- injuries alleged to have been caused by the defendant’s negligence. Upon the merits we deem it sufficient to say that the evidence presented a plain case for the jury, both as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence. At the close of the evidence the decision of a motion to dismiss the complaint was reserved by the.court without objection and the case was submitted to the jury, who were unable to agree, whereupon the motion to dismiss was renewed and the decision of it again reserved by the court. Thereafter the court made an order dismissing the complaint on the merits. The respondent takes the point that the appellant cannot review the ruling for want of an exception.

There was no way known to our practice by which the plaintiff coiild have taken an exception to the dismissal of the complaint. An exception could not have been noted in the minutes, because the motion was not granted at the trial. There was no decision to which an exception could be filed. The court made an order dismissing the complaint and upon that order a judgment was entered. The way to review it was to appeal from the judgment and the order. The appellant has undertaken to do that. There is a slight misdescription of the order in the notice of appeal, but it is plain that the plaintiff intended to appeal from the judgment and the order upon which it was entered. Permission would be granted, as a matter of course, to correct the notice of appeal, and we think that in the interest of justice the slight misdescription of the order in the notice of appeal may be disregarded.. As a question of fact was presented by the' evidence the court was plainly in error in granting the order for the dismissal of the complaint.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J.,-McLaughlin, LauGhlin and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.