Allen v. Corn Exch. Bank

• Decision Date: 18 April 1905
• Citation: 73 N.E. 1026,181 N.Y. 278
• Parties: ALLEN v. CORN EXCHANGE BANK et al.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 278

73 N.E. 1026

ALLEN

v.CORN EXCHANGE BANK et al.

Court of Appeals of New York.

April 18, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Aaron C. Allen against the Corn Exchange Bank and another. From an order of the Appellate Division (84 N. Y. Supp. 1001,87 App. Div. 335) reversing a judgment for plaintiff, he appeals. Dismissed.

This action was brought to recover onehalf of the amount collected by the defendant upon certain checks drawn to the order of the plaintiff and his brother jointly; the said brother having, without the knowledge of the plaintiff, received the checks, indorsed them in the name of himself and the plaintiff, and deposited them to the credit of his individual account with the defendant bank, thereafter drawing out the proceeds.Herman Aaron, for appellant.

John M. Bowers and Latham G. Reed, for respondents.

CULLEN, C. J.

At the Trial Term the plaintiff recovered a verdict, and thereupon the defendant moved on the judge's minutes to set aside the verdict, and for a new trial upon the exceptions and because the verdict was against the weight of evidence. The defendant's motion was denied, and thereafter judgment was entered on the verdict. The defendant appealed from the judgment and the order denying its motion for a new trial, and on appeal the Appellate Division reversed such judgment and order, both on questions of law and fact, and granted a new trial. From the order granting a new trial, the plaintiff has appealed to this court.

The plaintiff recognizes the rule so repeatedly laid down by the decisions of this court (Wright v. Hunter, 46 N. Y. 409;Albring v. N. Y. C. & H. R. R. Co., 166 N. Y. 287, 59 N. E. 990;Id., 174 N. Y. 179, 66 N. E. 665), that, if the Appellate Division might have reversed on the facts, this court cannot review its action, but contends that, on the uncontroverted evidence in the case, it was entitled to a direction of a verdict in its favor, and that therefore the Appellate Division was without power to reverse on the facts, and that the order appealed from can be sustained only by showing some error of law. In support of this contention are cited two recent decisions of this court (Otten v. Manhattan Railway Co., 150 N. Y. 395, 44 N. E. 1033;Hirshfeld v. Fitzgerald, 157 N. Y. 166, 51 N. E. 997,46 L. R. A. 839) in which it was held that the Appellate Division cannot create a question of fact by the assertion that it reverses on that ground, when the record shows that in reality there is no dispute of facts. To that doctrine we adhere, and therefore, in any case where the action of the Appellate Division in reversing on the facts is without justification in the record, we will reverse its order, provided, however, that in the particular case the order is, under the Constitution and the statute, appealable to this court. This qualification brings us to the first point to be considered on this appeal.

Under the Code of Procedure of 1849, orders granting new trials were not appealable to this court. Duane v. Northern R. Co., 3 N. Y. 545. By an amendment in 1851 such appeals were authorized, but by a subsequent amendment in 1852 the right of appeal was taken away. Finally, in 1857, an order granting a new trial was made appealable to this court, and so the practice remained under both the old Code and the present Code until the adoption of the Constitution of 1895. The power to review such orders granted by the Code was universal and plenary in its terms. But this court early decided that only questions of law (except in a few specified cases) could be reviewed by it, and that hence, when a motion for a new trial had been made in a case tried before a jury, and the General Term had reversed the order denying the motion for a new trial, as well as the judgment, the court would not entertain the appeal if it appeared that the General Term might have granted the new trial on questions of fact. Actions tried before the court or a referee were governed by different rules. It was under this condition of procedure that Judge Haight said, with entire accuracy, in Chapman v. Comstock, 134 N. Y. 509, 512,31 N. E. 876, 877: ‘The rule is now well settled that an order of the General Term granting a new trial in an action tried before a jury, when there was a conflict of evidence, and the order may have been made upon the facts, is not reviewable in this court unless it appears from the record that the order was affirmed as to the facts, or the appeal therefrom dismissed.’ But under the Constitution of 1895, and the amendments of the Code enacted in pursuance thereof, orders granting new trials no longer are generally and as a class appealable to this court, but only those of a specified character, to wit, ‘orders granting new trials on exceptions.’...