New v. Vill. of New Rochelle

• Decision Date: 10 January 1899
• Citation: 158 N.Y. 41,52 N.E. 647
• Parties: NEW v. VILLAGE OF NEW ROCHELLE.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 41

52 N.E. 647

NEW

v.VILLAGE OF NEW ROCHELLE.

Court of Appeals of New York.

Jan. 10, 1899.

Appeal from supreme court, general term, Second department.

Action by John New against the village of New Rochelle. A judgment for plaintiff was reversed by the general term (36 N. Y. Supp. 211), and the complaint dismissed, and plaintiff appeals by permission. Modified.

C. H. & J. A. Young & Terry, for appellant.

Michael J. Tierney, for respondent.

PER CURIAM.

We are satisfied with the determination of the learned general term that the judgment of the county court should be reversed, and with the reasons given for that conclusion. The court below, however, went further, and dismissed the complaint upon the merits. This, as we think, it had no power to do, under the circumstances, because it is not certain but what further evidence may be produced upon another trial that will so change the essential facts as to warrant the conclusion that the payment in question was not voluntarily made. The general term had power to ‘reverse or affirm, wholly or partly,’ or to modify, the judgment of the county court, and, ‘if necessary or proper,’ to grant a new trial. Code Civ. Proc. § 1317. The rule seems to be well settled that, in order to justify an appellate court in rendering final judgment against the respondent upon the reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial, but it must appear that he certainly cannot. Guernsey v. Miller, 80 N. Y. 181;Foot v. Insurance Co., 61 N. Y. 571;Griffin v. Marquardt, 17 N. Y. 28;Edmonston v. McLoud, 16 N. Y. 543. In Griffin v. Marquardt, supra, Judge Comstock said: ‘It is proper to say, and to say it with great distinctness, as the opinion of this court, that extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate court should be exercised in that direction only in cases where it is entirely plain, either from the pleadings, or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the suit.’ In Foot v. Insurance Co., supra, the court said: ‘It is not sufficient, to refuse a new trial, that it is highly improbable that the party defeated upon the appeal can succeed upon the new trial. It must appear that he certainly cannot.’ In Brackett v. Griswold, 128 N. Y. 644, 28 N. E. 365, there had been six trials, and the last was had on the same evidence given on the previous trials. The action had been pending for nearly 20 years, and the counsel had ‘substantially conceded by the course of the later trials that all the pertinent evidence...