Bossout v. Rome
| Decision Date | 20 January 1892 |
| Parties | BOSSOUT v. ROME, W. & O. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fourth department.
Action by William H. Bossout against the Rome, Watertown & Ogdensburg Railroad Company to recover for personal injuries. The cause was once before in this court. There was judgment for plaintiff, and defendant appeals from an order of the general term affirming an order denying a motion to set aside the assessment of damages as excessive. Appeal dismissed.
Edmund B. Wynn, for the motion.
John W. Hogan, opposed.
The plaintiff commenced this action to recover damages for an injury alleged to have been caused him through the negligence of the defendant. Upon the trial the plaintiff was nonsuited. He appealed from the judgment of nonsuit to the general term of the supreme court, and, after a hearing, that court reversed the judgment, and granted a new trial. From the order granting such new trial the defendant appealed to the court of appeals, and stipulated that, if the order were affirmed, judgment absolute should be rendered against it. The order was affirmed in this court, and judgment absolute was ordered to be entered against defendant in accordance with its stipulation. The remittitur from this court was filed in the supreme court, and our judgment was made the judgment of that court. In order to render the judgment thus entered effectual, and by virtue of section 194 of the Code,1 the court at special term ordered that the damages to which the plaintiff was entitled in the action should be assessed by a jury under the direction of the court at the next circuit, and for that purpose it was ordered that the cause should be placed on the circuit calendar. In obedience to the direction of the court the assessment of damages was had at the Jefferson circuit, and, after hearing evidence on that question from both sides, it was submitted to the jury, which assessed the damages for the plaintiff at the sum of $10,000. Thereupon, as the record states, the counsel for the defendant moved on the judge's minutes for a new trial, on the ground that the damages were excessive; that the verdict was unsupported by and contrary to the evidence, and contrary to the law of the case; and upon all the exceptions taken by defendant upon the trial of the action. The court denied the motion, and the defendant excepted. The plaintiff then entered what is termed a ‘judgment’ upon such assessment of damages for the amount of the verdict and the costs, from which, and from the order denying the defendant's motion for a new trial on the judge's minutes, the defendant appealed to the general term. That court affirmed both judgment and order and the plaintiff entered a judgment of affirmance accordingly. From this last so-called ‘judgment’ the defendant has appealed to this court, and the plaintiff now moves to dismiss the same on the ground that it is not appealable.
We think the motion should be granted. The judgment entered upon the filling of the remittitur from this court was an absolute and final one, which fixed irrevocably the liability of the defendant to pay the damages sustained by the plaintiff consequent upon the negligent act of the former. The proceeding to assess the damages thus sustained was taken in order to render such final judgment, already entered, effectual. It was a proceeding based upon that judgment, and undertaken pursuant to the provisions of section 194 of the Code. It was not the trial of an ordinary action at the circuit, and subject to the general provisions of the Code in that behalf relating to a review of such trial. It was in terms, and under the above-cited section, an assessment of damages merely, which might be had in the court of original jurisdiction, but not necessarily at circuit. The practice in a proceeding to assess damages in such cases is not specially laid down in the Code, and we must look at the nature of the proceeding itself to determine whether or not the judgment entered upon the verdict is appealable to this court. The effect of the affirmance of the order granting a new trial and the entry of judgment absolute thereon in the supreme court was the same as if the whole of plaintiff's action had been admitted and a default had occurred, and the sole question left was as to the amount of the damages sustained by the plaintiff. Under the old practice, where the amount of the damages could not be adjusted without an inquiry, a writ of inquiry to assess the damages was issued and directed to the sheriff of the county where the venue was laid, and stating that, ‘because it is not known what damages the plaintiff hath sustained,’ the sheriff is commanded to inquire of the same by a jury of 12 men, etc. G...
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McClelland v. Climax Hosiery Mills
...upon an assessment of damages, except as provided in section 339, is governed by the rules of the common law. Bossout v. Rome, W. & O. R. Co., 131 N. Y. 37, at 39,29 N. E. 753;Yaw v. Whitmore, 66 App. Div. 317, 321, 72 N. Y. S. 765. The principle which prevents a defendant from offering evi......
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...complaint were required to be treated as true, and the same as if no answer had been interposed. In the case of Bossout v. Rome, W. & O. R. R. Co., 131 N. Y. 37, 29 N. E. 753, Peckham, J., says: ‘The judgment entered upon the filing of the remittitur from this court was an absolute and fina......
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Matter of Phillips
...if the court found adversely to this respondent (appellant there) as a matter of law. (Weiman v. Weiman, supra; Bossout v. Rome, Watertown & Ogdensburg R. R. Co., 131 N.Y. 37, 40; Roberts v. Baumgarten, 126 N.Y. 336, 341.) The court having affirmed the Appellate Division as a matter of law,......