Middleton v. Whitridge

• Decision Date: 12 January 1915
• Citation: 108 N.E. 192,213 N.Y. 499
• Parties: MIDDLETON v. WHITRIDGE.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 499

108 N.E. 192

MIDDLETON

v.WHITRIDGE.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Nellie G. Middleton, administratrix of Lewis Middleton, deceased, against Frederick W. Whitridge, receiver of the Third Avenue Railroad Company, for death of intestate, alleged to have been caused by defendant's negligence. From a judgment of the Appellate Division (156 App. Div. 154,141 N. Y. Supp. 104) on appeal from a judgment for plaintiff and an order denying a moiton for new trial, reversing the judgment and dismissing the complaint, plaintiff appeals. Judgments reversed, and new trial granted.

Hiscock, J., dissenting in part.Frederick N. Van Zandt, of New York City, for appellant.

J. Ralph Hilton, of New York City, for respondent.

MILLER, J.

[1] The respondent asks for a dismissal of the appeal, and, if I understand the grounds of the request, they are that, under the authority of Wright v. Smith, 209 N. Y. 249, 103 N. E. 154, this court cannot entertain jurisdiction, that the appeal does not lie as of right, and that the unanimous decision of the Appellate Division, upon which the final judgment was entered pursuant to section 1317 of the Code of Civil Procedure, is not reviewable.

The appeal is from a final judgment dismissing the complaint, so Wright v. Smith, supra, has no application. Whilst the point is not directly involved, we consider it our duty in this connection to call the attention of the bench and bar to an important change in the practice effected by the amendment to section 1346 of the Code of Civil Procedure, which took effect September 1, 1914. In our opinion that amendment was sufficient to change the rule of that case and completely to assimilate the practice on appeal in jury cases to that in actions tried by a referee, or the court without a jury. That was the obvious purpose of the amendment to section 1338 of the Code of Civil Procedure, considered by us in that case. However, we were compelled to hold that the Legislature had not succeeded in accomplishing its purpose by reason of the fact that said section 1338, as amended in 1912, applied only to appeals from judgments reversing judgments or from orders granting new trials on such reversals, and under section 1346, as it then was, the appeal from a judgment rendered on the verdict of a jury brought up the exceptions only; the facts being still reviewable only on an appeal from an order denying a motion for a new trial. In that state of the practice it would still remain true, notwithstanding the amendment to section 1338, that the Appellate Division might reverse the judgment without considering the questions raised on the appeal from the order, and such a reversal would import nothing as to the disposition of those questions. Upon that distinction in the practice this court has uniformly, since the decision of Wright v. Hunter, 46 N. Y. 409, based its refusal in jury cases to entertain jurisdiction of appeals from judgments or orders of the General Term or Appellate Division granting new trials when there was an appeal to that court both from the judgment and an order denying a motion for a new trial, unless it affirmatively appeared that the order was affirmed or the appeal therefrom dismissed. That distinction was expressly made the basis of the decision in Wright v. Smith, supra. Presumably on account of that decision the Legislature has abolished that distinction by amending section 1346 so as to provide that an appeal may be taken upon questions of law or upon the facts or upon both from a judgment rendered on the verdict of a jury precisely as from a judgment rendered upon a trial by a referee or by the court without a jury. As the appeal from the judgment now brings up the facts as well as the exceptions in all cases, a reversal by the Appellate Division, silent as to the grounds thereof, will, perforce of section 1338, import in jury cases as well as in cases tried by a referee or the court without a jury that the findings of fact, whether made by the jury, the court, or a referee, were approved by the Appellate Division, and such reversal will now be reviewed by us on that assumption. Untermyer v. City of Yonkers, 188 N. Y. 594, 80 N. E. 1087;Lenox v. Lenox, 195 N. Y. 359, 88 N. E. 571. It will thus be incumbent on the Appellate Divisions to review the findings of fact in all cases, and, if not satisfied therewith, to say so. Of course, the amendment to said section 1346 will not apply to judgments of the Appellate Division rendered, as this one was, prior to September 1, 1914.

[2] The appeal is from a judgment of reversal, not from a judgment of affirmance, so an allowance of it pursuant to section 191, subd. 2, of the Code of Civil Procedure, was not necessary.

[3][4][5] The decision of the Appellate Division, though unanimous, was that there was no evidence to sustain the verdict, not that there was ‘evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court,’ within the meaning of section 191, subd. 4, of the Code of Civil Procedure, or article 6, § 9, of the state Constitution . That language seems plain. It imports a finding of fact by the tiral court or a referee or a verdict of a jury not directed by the court, and a unanimous decision of the Appellate Division on appeal that there is ‘evidence supporting or tending to sustain’ such finding of fact or verdict, as the case may be. An original finding or decision by the Appellate Division, pursuant to the practice inaugurated under section 1317 of the Code of Civil Procedure, as amended in 1912, is not a decision that there is evidence to sustain a finding of the trial court or a verdict of a jury. Moreover, the fact that a judgment is entered upon the unanimous decision of the Appellate Division that there is ‘evidencesupporting or tending to sustain a finding of fact or a verdict not directed by the court’ does not, as seems too commonly to be supposed, deprive this court of jurisdiction to review it. The specific question of law is not reviewable, and, if no others are presented, the appeal is frivolous, still the judgment is appealable.

[6][7][8][9][10][11] If the Appellate Division had granted a new trial, its judgment would not be reviewable, unless it affirmatively appeared, as it does not, that the findings of the jury had been affirmed (Wright v. Smith, supra); but it has granted a final judgment dismissing the complaint, and its action is open to review by us, at least to the extent of determining whether, on reversing the judgment of the trial court, it had the power to dismiss the complaint. That the Appellate Division has the power, under section 1317 of the Code of Civil Procedure, to make new findings of fact and a final adjudication on the merits in a case triable by the court, has been definitely decided by this court. Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559;Lamport v. Smedley, 213 N. Y. 82, 106 N. E. 922. The extent of the power in cases triable of right by a jury is limited by article 1, § 2, of the state Constitution, which provides:

‘The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.’

It is too plain to admit of doubt or to require discussion that in such cases the ultimate decision of all disputed questions of fact must be by a jury, unless the parties have consented to a decision of them by the court, but it does not follow that the Appellate Division may never finally dispose of a jury case in which it disagrees with the trial court. The seventh amendment to the federal Constitution does not limit state action, and so Slocum v. New York Life Insurance Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029, is not controlling. Moreover, the said provisions of the state and federal Constitutions are dissimilar. The provision of the state Constitution guaranteesthe substantial right of trial by jury, but it contains no language even suggestive of a purpose to preserve ancient common-law forms and rules of procedure. If, as a matter of law, a dismissal of the complaint or a direction of a verdict is proper, or if disputed questions of fact are by consent submitted to the court for decision, as where both sides move for a direction of a verdict without asking to go to the jury, no constitutional right in invaded by the determination of the cause by the trial court without taking a verdict of the jury. If in such case the trial court errs by submitting the case to the jury, or in deciding a question of fact submitted to it for decision, the purpose of the appeal is to correct such error, and the final disposition of the cause by the Appellate Division, in the manner in which it should have been disposed of in the first instance, does not violate a right which never existed or had been waived, to have the case submitted to the jury. See Bothwell v. Boston El. Ry. Co. 215 Mass. 467, 102 N. E. 665, Ann. Cas. 1914D, 275. The framers of the amendment to said section 1317 were plainly mindful of the constitutional limitation upon their power. ‘When a trial has been before a jury,’ the section reads, ‘the judgment of the appellate court must be rendered either upon special findings of the jury or the general verdict, or upon a motion to dismiss the complaint or to direct a verdict.’ The final judgment, then, which the Appellate Division is empowered to render, is the one which the trial court should have rendered either upon a special or a general verdict, or upon a motion to dismiss the complaint or to direct a verdict. The error thus corrected is the error of the court, not of the jury. The province of the jury is not invaded by the correction of such an error and the rendition of the judgment which ought to have been rendered by the trial...