Goodman v. Marx
| Decision Date | 17 October 1922 |
| Citation | 136 N.E. 853,234 N.Y. 172 |
| Parties | GOODMAN v. MARX. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Helen Goodman against Max Marx. From an order of the Appellate Division (201 App. Div. 386,195 N. Y. Supp. 368) reversing a judgment in favor of the defendant entered upon a verdict and granting a new trial, defendant appeals.
Appeal dismissed.
Appeal from Supreme Court, Appellate Division, Second department.
Yorke Allen, of New York City, for appellant.
Joseph A. Seidman, of New York City, for appellee.
Plaintiff sued to recover damages for breach of a contract by which the defendant agreed to convey to her certain real property in the borough of Manhattan, city of New York. The issues in the case were tried before a jury and resulted in a verdict for the defendant. The Appellate Division (195 N. Y. Supp. 368) has reversed the judgment entered upon the verdict, stating in the order that the reversal was upon the law and the facts, and granted a new trial, with costs to abide the event. The defendant has appealed to this court, giving stipulation for judgment absolute as provided for by section 588 of the Civil Practice Act.
The respondent has moved to dismiss the appeal on the ground that the Appellate Division, having reversed upon the facts as well as the law, and there being a question of fact in the case, this court has no power of review under the practice as it has been since section 602 of the Civil Practice Act became effective.
Section 1338 of the Code of Civil Procedure, reads as follows:
‘Upon an appeal to the Court of from a judgment reversing a judgment upon the report of a referee, upon the of a jury or a decision, or a determination the trial court; or from an order granting a new trial, upon such a reversal; it must be conclusively presumed that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the particular question or questions of fact upon which the reversal was made or the new trial was granted are specified and referred to by number or other adequate designation in the body of the judgment or order appealed from.’
Under this provision we have repeatedly held that, where the Appellate Division reversed and granted a new trial, but failed to state the particular fact or findings of fact which it reversed, we would presume that the reversal was upon questions of law only, and that the findings of fact were affirmed. This was so even though the order of the Appellate Division stated that it reversed upon the facts, but failed to state the particular finding of fact reversed. Larkin v. New York Telephone Co., 220 N. Y. 27, 114 N. E. 1043;Woicianowicz v. Philadelphia & Reading Coal & Iron Co., 232 N. Y. 256, 133 N. E. 579;Caldwell v. Lucas, 233 N. Y. 248, 135 N. E. 321.
Section 602 of the Civil Practice Act has now modified this practice as to jury trials, restoring it to what it was prior to the amendment of section 1338 of the Code of Civil Procedure by chapter 361 of the Laws of 1912....
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World Exch. Bank v. Commercial Cas. Ins. Co.
...the plaintiff, to prevail, must satisfy the court that the loss as a matter of law is within the coverage of the bond. Goodman v. Marx, 234 N. Y. 172, 136 N. E. 853. If there is any question of fact from which opposing inferences can be drawn, the Appellate Division was free, in the exercis......
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Gang v. Gang
...of a judgment. Civil Practice Act, §§ 602, 620; Matter of Flagler, 248 N. E. 415, 420, 162 N. E. 471, 59 A. L. R. 649;Goodman v. Marx, 234 N. Y. 172, 174, 136 N. E. 853. This was the practice under the Code. Code Civ. Proc. § 1338; Moore v. Vulcanite Portland Cement Co., 220 N. Y. 320, 115 ......
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Schnibbe v. Glenz
...some misunderstanding of the provisions of the Civil Practice Act relating to procedure in that court. [1] We held in Goodman v. Marx, 234 N. Y. 172, 136 N. E. 853, 854, that where a judgment was reversed upon the facts and a new trial granted, the Appellate Division was required to state t......
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Jones & Brindisi, Inc. v. Breslaw
...to be drawn from the finding of fact made by the trial judge. In other words, the reversal here is purely upon questions of law. Goodman v. Marx, 234 N. Y. 172, bottom of page 174, 136 N. E. 853, 854;Rosenberg Bros. & Co. v. F. S. Buffum Co., 234 N. Y. 338, concluding paragraph, page 344, 1......