Mickee v. Walter A. Wood Mowing & Reaping Mach. Co.

• Decision Date: 05 February 1895
• Citation: 39 N.E. 650,144 N.Y. 613
• Parties: MICKEE v. WALTER A. WOOD MOWING & REAPING MACH. CO.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 613

39 N.E. 650

MICKEE

v.WALTER A. WOOD MOWING & REAPING MACH. CO.

Court of Appeals of New York.

Feb. 5, 1895.

Appeal from supreme court, general term, Third department.

Action by Agnes Mickee, as administratrix, etc., of Charles Mickee, deceased, against the Walter A. Wood Mowing & Reaping Machine Company, for personal injuries. From a judgment of the general term (28 N. Y. Supp. 918) reversing an order and judgment in favor of plaintiff, defendant appeals. Appeal dismissed.

This was an action of negligence, in which the jury rendered a verdict for the plaintiff for $5,000. The defendant moved for a new trial upon the judge's minutes, which was denied. The defendant appealed from the order denying a new trial, and from the judgment entered in favor of the plaintiff upon the verdict. The general term ordered ‘that for errors of law only, and not for errors of fact, said order and judgment be, and the same hereby are, in all things reversed, and that a new trial be granted herein.’ Judgment was also entered upon the general term order. The plaintiff then appealed to this court from the order of the general term and from the judgment entered thereupon, and stipulated for judgment absolute in the event of the affirmance of the order appealed from.

Olin A. Martin, for appellant.

G. B. Wellington, for respondent.

GRAY, J.

It is quite clear that the order of the general term is not appealable. The defendant, by its appeal to the general term, was entitled to have that court pass upon the facts, and dispose of the appeal from the order denying a new trial upon the minutes. The statement in the order of the general term that the reversal was for errors of law only, and not for any error of fact, does not show that the court had considered the facts. The case falls within the authority of Harris v. Burdett, 73 N. Y. 136, where the appeal to the general term had been, as in this case, from the order denying a new trial, and also from the judgment, in a case tried before a jury. There the general term reversed the judgment, and ordered a new trial. Rapallo, J., delivering the opinion of the court, said: ‘Assuming that the court did actually grant the new trial on a question of law, and that this can be made conclusively to appear, yet, if the case came before the general term in such form, and the character of the evidence was such, that a new trial might have been granted on questions of fact, the order is not appealable to this court...