Lamport v. Smedley

• Decision Date: 10 November 1914
• Citation: 213 N.Y. 82,106 N.E. 922
• Parties: LAMPORT v. SMEDLEY.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 82

106 N.E. 922

LAMPORT

v.SMEDLEY.

Court of Appeals of New York.

Nov. 10, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Albert G. Lamport, as administrator of Hiram L. Lamport, deceased, against Mary Clementine Smedley. From a judgment of the Appellate Division (155 App. Div. 516,140 N. Y. Supp. 567) reversing a judgment for plaintiff, and dismissing the complaint, plaintiff appeals. Affirmed.

See, also, 210 N. Y. 547, 104 N. E. 1133; 157 App. Div. 442,142 N. Y. Supp. 350.

Edmund L. Mooney, of New York City, for appellant.

John S. Wise, Jr., of New York City, for respondent.

CARDOZO, J.

The action is brought to set aside a transfer of certificates of stock and policies of insurance. The charge is that the defendant procured the transfer through undue influence and fraud. The court at Special Term found in favor of the plaintiff. The Appellate Division reversed the judgment as contrary to the evidence and dismissed the complaint. In so doing it followed the rule of practice laid down in Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559, andmadeits own findings. By these it is established that neither actual nor constructive fraud is chargeable to the defendant.

[1] That the Appellate Division has the power in an action in equity, when it reverses the judgment of the trial court, to make its own findings and proceed to a new and complete adjudication was held, by implication at least, in Bonnette v. Molloy, supra. If it be true, as the appellant's counsel asserts, that the decisions of this court are supposed by the bar to leave the existence of the power in doubt, it is time that the doubt be dispelled. Until the amendment which took effect September 1, 1912, section 1317 of the Code of Civil Procedure provided:

‘The Appellate Division * * * may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing.’

Under the law, as it then stood, a new trial was necessary, unless it appeared to be impossible and not merely improbable that the result would be changed. Elliott v. Guardian Trust Co., 204 N. Y. 212, 97 N. E. 521;Duclos v. Kelley, 197 N. Y. 76, 89 N. E. 875;Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166, 83 N. E. 789. By an amendment which took effect September 1, 1912, section 1317 (so far as its provisions are material in this case) was made to read as follows:

‘Upon an appeal from a judgment or an order, the Appellate Division of the Supreme Court, or Appellate Term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and final judgment upon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing.’

The purpose of this amendment is not doubtful. In equity causes, before the days of Code practice, the appellate court was not constrained upon reversal to order a new trial, but might proceed to render whatever new decree the justice of the case required. Schenck v. Dart, 22 N. Y. 420;Benedict v. Arnoux, 154 N. Y. 715, 725,49 N. E. 326;Penhallow v. Doane, 3 Dall. 54, 10 7,1 L. Ed. 507;Wickliffe v. Owings, 17 How. 47, 15 L. Ed. 44;Cragin v. Lovell, 109 U. S. 194, 3 Sup. Ct. 132, 27 L . Ed. 903. The Appellate Division has now been reinvested with that power. Indeed, the power has been extended, for it applies to all actions and proceedings, whether equitable or legal, except where the trial under review has been before a jury. The limitations upon the power of the appellate court in the latter class of cases we need not now consider. The appellant insists that the grant of power to render final judgment is neutralized by the concluding provision that, when necessary or proper, a new trial must be ordered. He asks us to hold that, as a matter of law, a new trial is always necessary and proper when it is conceivable that new evidence...