Woicianowicz v. Philadelopia & Reading Coal & Iron Co.

• Decision Date: 16 December 1921
• Citation: 133 N.E. 579,232 N.Y. 256
• Court: New York Court of Appeals Court of Appeals
• Parties: WOICIANOWICZ v. PHILADELOPIA & READING COAL & IRON CO.

232 N.Y. 256

133 N.E. 579

WOICIANOWICZ

v.PHILADELOPIA & READING COAL & IRON CO.

Court of Appeals of New York.

Dec. 16, 1921.

Action by Michael Woicianowicz against the Philadelphia & Reading Coal & Iron Company. From an order of the Appellate Division, and from a judgment entered thereon (186 App. Div. 906,172 N. Y. Supp. 926), reversing judgment in favor of plaintiff, and also reversing an order of the Trial Term denying his motion for a new trial, and dismissing the complaint on the ground that plaintiff was not a resident of New York, plaintiff appeals.

Judgment appealed from reversed, and that of Trial Term affirmed.

McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Austin & Abruzzo, of Brooklyn (John C. Robinson, of New York City, of counsel), for appellant.

Macklin, Brown & Purdy, of New York City (Pierre M. Brown, of New York City, of counsel), for respondent.

CRANE, J.

This action was brought by the plaintiff for damages sustained by him in the defendant's coal mine in Shenandoah, Pa., where he was employed. The complaint alleged that the plaintiff was a resident of the city and state of New York, which was denied by the answer. The defendant also pleaded, as a separate and distinct defense, that the plaintiff was a nonresident and that it was a nonresident corporation. The court charged the jury, among other things, as follows:

‘I will charge the jury without any qualification on that if the jury find this plaintiff came here to New York for the particular purpose of bringing this particular lawsuit and for that purpose alone, and that his residence here is not bona fide, it is their duty to find in favor of the defendant. Do you want it any differently? I will take your word for it.

‘Mr. Brown: I think that is substantially so. If the jury believe the plaintiff came to New York for the purpose of bringing this action without the intention of becoming a resident, their verdict must be for the defendant.

‘The Court: I so charge at the request of both counsel.’

The Appellate Division by its order adjudged that the judgment and order appealed from be reversed and the complaint dismissed ‘on the ground that the plaintiff was not a bona fide resident of the state of New York and that the action should have been brought in the state of Pennsylvania.’

Pursuant to the provisions of section 1338 of the Code of Civil Procedure, we must assume that all other questions of fact have been passed upon by the Appellate Division and affirmed in the plaintiff's favor. By that section it must be conclusively presumed that the judgment was not reversed or a new trial granted upon a question of fact unless the particular question is specified and referred to in the order appealed from. The only reference in the order is to the fact regarding the plaintiff's residence.

[2] As to this the Appellate Division have determined as a matter of law that there is no evidence to sustain a finding that the plaintiff was a bona fide resident of the state of New York. In this we think the Appellate Division was in error.

The plaintiff testified that after he had been discharged by the defendant in Pennsylvania, and being unable to get further work there, he came to New York at the invitation of a friend and obtained work in a pipe factory; that in March of 1916 he brought his family to New York; and that since the time he first came he had not been back to Pennsylvania, but had lived at Woodhaven, N. Y., for about six months, and thereafter went to live at 442 Greenwich street, New York City, until he moved to Greenpoint avenue, brooklyn, which was his residence at the time of the trial. He also testified that when he came to New York City it was his intention to stay here permanently.

Upon this testimony we think a question of fact was raised which the court very properly left to the jury to determine, as above stated, whether or not at the time of bringing this action the plaintiff was a bona fide resident of this state, and that the Appellate Division was in error in determining as a matter of law that there was no such issue, that the plaintiff was not a resident of New York state, and that his complaint should have been dismissed.

As the above was the only question of fact which the Appellate Division disapproved, and all other questions of fact being approved, pursuant to the terms and provisions of section 1338 of the Code of Civil Procedure above referred to, the judgment of the Appellate Division must be reversed, unless there was error in the law. Whether there was any evidence of negligence and freedom from contributory negligence presents a question of law reviewable on this appeal. We have examined the evidence and conclude that there was sufficient evidence in the plaintiff's favor to require submission of this case to the jury.

The judgment appealed from should be reversed, and that of Trial Term affirmed, with costs in this court and in the Appellate Division.

McLAUGHLIN, J. (dissenting).

On the 4th of August, 1913, the plaintiff, while at work for defendant, a foreign corporation, in its coal mine in Pennsylvania, sustained serious injuries. He brought this action to recover damages therefor on the theory that the same were caused by the negligence of the defendant. Plaintiff had a verdict for a substantial amount, upon which judgment was entered, and defendant appealed. The judgment was reversed and the complaint dismissed, upon the ground, as appears from the order of reversal, ‘that the plaintiff was not a bona fide resident of the state of New York and that the action should have been brought in the state of Pennsylvania.’ Plaintiff appeals to this court.

Personally, I am of the opinion, for the reasons stated in the order of reversal, that the complaint was properly dismissed upon the facts set out in the record.

The accident occurred in Pennsylvania. Plaintiff then was, and for a long time had been, a resident...