Nat'l Harrow Co. v. E. Bement & Sons

• Decision Date: 19 June 1900
• Citation: 163 N.Y. 505,57 N.E. 764
• Court: New York Court of Appeals Court of Appeals
• Parties: NATIONAL HARROW CO. v. E. BEMENT & SONS.

163 N.Y. 505

57 N.E. 764

NATIONAL HARROW CO.

v.E. BEMENT & SONS.

Court of Appeals of New York.

June 19, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action for breach of contract by the National Harrow Company against E. Bement & Sons. From a judgment of the appellate division (47 N. Y. Supp. 462), reversing a judgment in favor of plaintiff, it appeals. Reversed.

Cullen and Bartlett, JJ., dissenting.

Edwin H. Risley, for appellant.

N. J. Cookinham, for respondent.

PARKER, C. J.

The printed ‘case’ is not without indications that the learned justice who wrote for the appellate division intended a reversal upon the facts, but through inadvertence of the court in making or counsel in preparing the order of reversal, it does not show that the reversal was upon the facts, and hence this court is required by statute to presume that the judgment was not reversed upon a question of fact, but upon the law. Code, § 1338. That section is in substantially the same form now as when the Code of Civil Procedure was enacted in 1876. The amendment of 1895, to which reference will be made later, in no wise affected an order which did not state that the reversal was upon the facts. In very many cases the court has been invited to review judgments where it was apparent that a mistake had been made in the order of reversal, but it has steadfastly adhered to the command of the statute, and refused to sustain the judgment unless it appeared that there was an error of law upon which the general term or the appellate division, as the case might be, could have rested its reversal. Among these cases may be found the following: Weyer v. Beach, 79 N. Y. 409;Davis v. Leopold, 87 N. Y. 620;Hannigan v. Allen, 127 N. Y. 639, 27 N. E. 402;Furner v. Seabury, 135 N. Y. 50, 31 N. E. 1004;Mack v. Colleran, 136 N. Y. 617, 32 N. E. 604;Riendeau v. Bullock, 147 N. Y. 269, 41 N. E. 561;Bomeisler v. Forster, 154 N. Y. 229, 48 N. E. 534,39 L. R. A. 240;Snyder v. Seaman, 157 N. Y. 449, 52 N. E. 658;Petrie v. Trustees, etc., 158 N. Y. 458, 53 N. E. 216;People v. Adirondack Ry. Co., 160 N. Y. 225, 54 N. E. 689;Gannon v. McGuire, 160 N. Y. 476, 55 N. E. 7;Lannon v. Lynch, 160 N. Y. 483, 55 N. E. 5;Spellman v. Looschen, 162 N. Y. 268, 56 N. E. 741;Shotwell v. Dixon, 163 N. Y. 43, 57 N. E. 178. Every one of the cases cited is consistent with the requirement of the statute, and not only holds that the statute limits the court in such a situation to the review of questions of law presented by esceptions, but the various questions of law which may be passed upon on such a review have been considered, and it had been decided that they are confined to rulings touching the admission and rejection of testimony, to the question whether the conclusion of law is supported by the facts found, and also whether any material finding of fact is without evidence to support it. Not only has the court in all the cases I have referred to failed to discover any other question of law than those just mentioned, but this court has said again and again, and very recently, as I shall soon point out, that there are no other questions of law which can arise in such a situation as this record presents. Before referring to the special discussion of this subject in the recent decisions of this court, attention is invited to the fact that section 1338 as originally enacted had one more sentence than at present. The section formerly read as follows: ‘Sec. 1338. Upon an appeal to the court of appeals from a judgment, reversing a judgment entered upon a referee's report, on a decision of the court, upon a trial without a jury; or from an order granting a new trial upon such a reversal; it must be presumed, that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the court of appeals must review the determination of the general term of the court below, upon the questions of fact, as well as the questions of law.’ Formerly, therefore, it was the duty of this court, where there was a reversal upon the facts, to review the questions of fact as well as the questions of law; but after the adoption of the new constitution, which took effect January 1, 1895, and which provided that the jurisdiction of this court, ‘except where the judgment is of death, shall be limited to the review of questions of law,’ the legislature of that year, for the purpose of conforming the practice to the mandate of the constitution, amended section 1338 by striking out the last sentence. When that was done, the last vestige of the right of this court to review the facts of a trial had before a court or referee, whatever the form of the order of reversal, was swept away. The authorities down to that time consistently held that the facts should not be reviewed save when the reversal was in terms upon the facts, as an examination of the cases cited above will show; and when that right was taken away by repeal of the provision authorizing such review, it would seem that the constitution and the statute together had securely barred our entrance to the record for the purpose of examining the evidence and determining what judgment such evidence calls for, and deciding the appeal accordingly. The learned counsel now proposes that we shall do just that, and nothing more. The proposition is presented differently, of course, and far more seductively, but reflection shows that the result aimed at is not and cannot be less than that. If, in the absence of decision, there were room for argument as to whether the effect of the repeal of the provision of section 1338 authorizing this court to review the facts where there is a reversal upon the facts was to invest the court with a power which it did not have at the time of such repeal, namely, the power to review the facts where the reversal was not upon the facts, it cannot be listened to now, for that question has been otherwise decided, and therefore is no longer an open one.

The court has had before it since the amendment of 1895 a number of cases where the extent of the power of review in this court where the reversal of a referee or trial court is not upon the facts has been considered. In Bomeisler v. Forster, supra, the court, speaking through Judge Gray, and after calling attention to the fact that the exception to the decision made it the duty of the appellate division to review all questions of fact and law, stated the rule as to the effect of an order of reversal which is silent as to its grounds to be that this court is bound to presume that the reversal was upon questions of law. The opinion then proceeds to state the limit of our authority in such a case in the following words: ‘Our review is, therefore, confined to the consideration of whether, upon the decision made by the trial court upon the facts, the legal conclusion followed that the plaintiff was entitled to the equitable relief awarded him, and, if there was no error in that respect, whether there were errors of law committed in the rulings upon the trial, which would, in any event, have justified a reversal of the judgment, and rendered a new trial necessary.’ In that decision the facts were not separately stated, but it was what is known as a ‘short decision,’ and the court considered the effect of its substitution for separate findings of fact, and reached the conclusion that such a decision has in its support the presumption that all the facts warranted by the evidence and necessary to support the judgment were impliedly found. In support of that proposition the court cited the case of Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876. The case of Petrie v. Trustees, etc., supra, was a case where the referee's report was also general in form, and the court followed the decision in the Bomeisler and Amherst College Cases in holding that all the facts warranted by the evidence and necessary to support a judgment in such a case were impliedly found by the referee, and it adopted the rule of the Bomeisler Case as to the boundaries of the right of review in this court where the order of reversal does not state that it is upon the facts. The form of the decision was the same in People v. Adirondack Ry. Co., supra, and this court, following the cases already referred to, Judge Vann writing, said: ‘It must be presumed that all the facts warranted by the evidence and necessary to support the judgment were found by the special term, and that the reversal by the appellate division was based wholly upon errors of law, the facts standing approved by that court.’ This case was cited in Gannon v. McGuire, supra, in support of the proposition, in which all of the court agreed, that, ‘according to the order of reversal, the learned appellate division did not disturb the facts presumed to have been found by the trial court, which include all facts warranted by the evidence and necessary to support the judgment.’ And Judge O'Brien, in Lannon v. Lynch, supra, after referring to the requirement of section 1338 of the Code in a case where it does not appear in the order appealed from that the judgment was reversed upon the facts, said: ‘There is no such statement in the order now before us. It simply states that there was a reversal and a new trial directed. We are commanded by the statute to treat the decision as one not interfering with the facts found at the trial.’ Spellman v. Looschen, supra, was a case in which the record disclosed no exceptions taken to the admission and rejection of testimony, and where undisputedly the conclusion of law followed from the facts found, and so Judge Landon said: ‘The only question of law presented by the record for our review is whether the learned trial court found, without evidence to support it, any fact material to the judgment.’

I have called attention to a sufficient number of cases to show...