Mulder v. United States Slicing Mach. Co.

• Decision Date: 24 February 1920
• Citation: 126 N.E. 517,228 N.Y. 88
• Parties: MULDER v. UNITED STATES SLICING MACH. CO. et al.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 88

126 N.E. 517

MULDER

v.UNITED STATES SLICING MACH. CO. et al.

Court of Appeals of New York.

Feb. 24, 1920.

Action by Abel R. Mulder against the United States Slicing Machine Company and another. From a judgment of the Appellate Division (187 App. Div. 921,174 N. Y. Supp. 913), affirming a judgment of the Trial Term for plaintiff, defendants appeal.

Judgment reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Fourth Department.

T. P. McCarrick, of Rochester, for appellants.

Charles Van Voorhis, of Rochester, for respondent.

HOGAN, J.

The plaintiff seeks in this action to recover damages by reason of the acts of the defendants, who it is charged in the complaint maliciously and without reasonable or probable cause therefor charged plaintiff before a police justice of the city of Rochester with the crime of grand larceny in the second degree, and procured a warrant to be issued by the justice for the arrest of plaintiff who was apprehended, held to bail and imprisoned for three days until released on bail, and thereafter the charge was withdrawn by defendants.

Upon a former trial of the action the plaintiff was awarded a verdict of $2,500, and from a judgment therefor defendants appealed to the Appellate Division, and the latter court by an order duly made in January, 1918 (182 App. Div. 910,170 N. Y. Supp. 1098), reversed the judgment and granted a new trial, with costs to appellants to abide the event, upon the ground that the verdict was excessive, unless plaintiff should within 10 days stipulate to reduce the verdict to the sum of $500 as of the date of the rendition thereof, in which event the judgment should be modified accordingly, and, as so modified, affirmed, without costs of the appeal to either party. The plaintiff declined to give the stipulation and proceeded to a second trial of the action, now under review. Upon that trial the jury rendered a verdict for $2,800, which has been unanimously affirmed by the Appellate Division.

In view of the fact that the judgment herein must be reversed, reference to the facts contained in the record, and a review of the same in connection with numerous exceptions argued by appellants which would render the opinion of unnecessary length is deemed unnecessary.

[1] Immediately before the close of plaintiff's case, plaintiff's counsel offered in evidence the order of the Appellate Division granting a new trial, and the same was received over objection and exception of counsel for defendants. The order was thereupon read by counsel for plaintiff. The admission of the order in evidence was prejudicial error.

Counsel for the respondent seeks to justify the admission in evidence of the order upon two grounds: First, as information to the jury why the cause was being tried a second time, and not leaving them to reason or guess and conjecture; second, in the event that the verdict of the jury on the second trial was for plaintiff, to let the Appellate Division know in case of an appeal that the jury understood its idea of the plaintiff's damages. The duty imposed upon a jury is to hear the evidence adduced upon the trial, apply the rules of law as declared by the court, and render a verdict thereon. The order of the Appellate Division was incompetent, as would have been an order made on a former trial by the trial justice setting aside the verdict for insufficient damages. One order would indicate to a jury that a former verdict was insufficient in amount; the other order, that the plaintiff was entitled to recover at least $500 damages. As to the second ground the Appellate Division, in the event of an appeal, would observe from the record and judgment the amount of damages the jury believed plaintiff entitled to recover and should be awarded.

At the close of the charge the counsel for defendants requested the court to charge that the reduction of the verdict rendered upon the last trial is no indication that the plaintiff is entitled to recover any verdict upon this occasion. In reply the court said:

‘We are trying this case just as it appears here, and under the evidence here and the law as given in this case. We are not concerned with any previous disposition or determination by any other tribunal in the...