Harroun v. Brush Electric Light Co.

• Citation: 152 N.Y. 212,46 N.E. 291
• Parties: HARROUN et al. v. BRUSH ELECTRIC LIGHT CO.
• Decision Date: 09 March 1897
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 212

46 N.E. 291

HARROUN et al.

v.BRUSH ELECTRIC LIGHT CO.

Court of Appeals of New York.

March 9, 1897.

Appeal from supreme court, appellate division, Fourth department.

Action by Medora A. Harroun and others, administrators, against the Brush Electric Light Company. A judgment for plaintiff was affirmed by the appellate division (42 N. Y. Supp. 716), and defendant appeals. Appeal dismissed.

Charles Roe, for motion.

George F. Yeoman, opposed.

BARTLETT, J.

This is a motion made by the plaintiff to dismiss the appeal. The action is to recover damages for the death of plaintiff's intestate, resulting from injuries caused by the alleged negligence of defendant. The jury rendered a verdict for $5,000 in favor of plaintiff. A motion for a new trial on the minutes was denied. From the judgment upon the verdict, and the order denying a new trial, an appeal was taken to the appellate division of the Fourth department, which resulted in an affirmance. The order of affirmance reads: ‘Opinion by Follett, J. Adams, J., not sitting. All concur, except Adams, J., not sitting.’ 42 N. Y. Supp. 716. A motion was subsequently made before the appellate division for a reargument, or for permission to appeal to this court, which was denied, all the members of the court concurring; Adams, J., not sitting. 43 N. Y. Supp. 1155. Notwithstanding this decision, cision, and without application to a judge of this court for leave, the defendant took this appeal. The sole question presented is whether, under the circumstances as stated, there was a unanimous decision of the appellate division. It is argued by the defendant and appellant that article 6, § 2, of the constitution provides that the state shall be divided into four judicial departments; that there shall be an appellate division of the supreme court, consisting of seven justices in the First department, and five justices in each of the other departments; that in each department four justices shall constitute a quorum, and the concurrence of three shall be necessary to a decision; that no more than five justices shall sit in any case. This being so, it follows, says the appellant, that in the Fourth department the appellate division consists of five justices, and that a quorum of four hearing a case, and affirming it on the vote of all, it cannot be regarded as a unanimous decision, under the provisions of section 191 of the Code of Civil Procedure, subsec. 2. We are of opinion that a quorum of...