Faber v. City of New York
| Decision Date | 12 January 1915 |
| Citation | 107 N.E. 756,213 N.Y. 411 |
| Parties | FABER v. CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Mary Faber, administratrix of Rudolph Faber, deceased, against the City of New York. From a judgment of the Appellate Division (161 App. Div. 203,146 N. Y. Supp. 295) reversing a judgment on a verdict for plaintiff, and dismissing the complaint, plaintiff appeals. Modified, and new trial granted.
See, also, 147 N. Y. Supp. 1109.Henry M. Dater, of Brooklyn, for appellant.
Frank L. Polk, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent.
The plaintiff, as administratrix of Rudolph Faber, deceased, sues to recover damages for alleged negligence on the part of the defendant causing the death of plaintiff's intestate. The jury returned a verdict for the plaintiff. From the judgment entered upon the verdict and from the order denying the defendant's motion for a new trial, an appeal was taken to the Appellate Division. Upon appeal the Appellate Division reversed the judgment and order and dismissed the complaint. The order of reversal provides that it is ‘unanimously ordered that the said judgment and order so appealed from be and the same hereby are reversed on questions of fact; the finding of negligence on the part of the defendant, the city of New York, is reversed, with costs and disbursements; and it is further ordered that the complaint herein be and the same hereby is dismissed with costs.’ One of the justices of the Appellate Division dissented from so much of the decision as dismission the complaint.
[1][2][3] It is contended by the respondent that the judgment appealed from is not reviewable here because the Appellate Division has reversed the judgment for the plaintiff upon questions of fact. So far as the judgment of the Appellate Division reversed the judgment of the Trial Term on the facts, it is not reviewable here. The judgment of the Appellate Division, however, did not stop with reversing the judgment of the Trial Term but dismissed the complaint. The complaint was dismissed because in the opinion of the learned Appellate Division ‘the evidence was insufficient to show culpable negligence on the part of the defendant.’ The dismissal of a complaint because of the alleged insufficiency of the plaintiff's proof to constitute a cause of action presents a question of law involving a final determination of the action, and is reviewable in this court. The character of the question presented as one of law is not affected by the statement in the decision of the Appellate Division that the judgment and order appealed from are reversed on questions of fact. In so far as the Appellate Division reversed the judgment of the Trial Term, that decision is not subject to review in this court. In so far as the decision of the Appellate Division dismissed the complaint, it presents for review in this court a question of law, and the right to review that question is not affected by the powers conferred upon the Appellate Division by the recent amendment (Laws of 1912, c. 380) to section 1317 of the Code of Civil Procedure. If the facts proved upon the trial were insufficient to constitute a cause of action, the judgment of the Appellate Division must be affirmed. If the facts proved did constitute a cause of action, the judgment of the Appellate Division, in so far as it dismissed the complaint, must be modified and a new trial granted. The complaint having been dismissed, this court must, in determining whether the facts proved constitute a cause of action, give the appellant the benefit of every favorable inference which can reasonably be drawn....
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