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LAUGHLIN, J. (concurring in result). In for appellant that another new trial would be mai ( sriew of the questions presented and argued on futile, and that the judgment and order should s da his appeal, I regard the decision made by the be reversed, and judgment absolute directed in

majority of the court as indicating a determina- favor of defendant. On the other hand, counsel

tion to allow no verdict that may be rendered for plaintiff contends that, four successive ver. Bavin Lolely upon the evidence contained in this record dicts having been rendered by the jury, it is So to stand. Being of opinion that this is usurping now the duty of this court to acquiesce in the til lor the functions of the jury to an unwarranted ex- verdict and affirm the order. Section 1317 of est tent, I state the case and the reasons which lead the Code of Civil Procedure provides that the * me to vote for reversal. Plaintiff was a brake appellate division may reverse or affirm, in

man in the employ of defendant, and the action wbole or in part, the order or judgment appealy was brought to recover damages for personal ined from, or may modify the same, “and it may,

juries sustained by him by contact with a low if necessary or proper, grant a new trial or

bridge under which his train was passing in hearing.". Our only authoritative precedents their broad daylight on the 8th day of July, 1882. in for refraining from granting a new trial on

the village of Norwich. At the time of receiving reversal, and for directing judgment absolute the injuries plaintiff was standing on top of ove against the respondent, are cases where the of the cars, facing in the opposite direction. facts have been found by the trial court, or There have been five trials of the issues. The are conceded or undisputed or established by

first trial was in 1884, and resulted in a ver- official records, or where it is evident "that dict of $4,000, which was set aside on appeal, no possible state of proof applicable to the on exceptions; the court ruling that on the main issues in the case will entitle" him to recorquestions a case was made for presentation to er,-in other words, where it clearly appears

the jury. 39 Hun, 430. Iu 1886, on the second affirmatively that respondent cannot succeed de trial, the plaintiff recovered a verdict of $4,900. on a new trial. Hendrickson v. City of New

The judgment entered upon this verdict was York, 160 N. Y. 144-150, 54 N E. 680; Ed. sustained by the general term (43 Hun, 633), mundston v. McLoud, 16 N. Y. 543, 544; New but reversed by the court of appeals, upon the v. Village of New Rochelle, 158 N. Y. 41, 52 N. ground that it appeared from plaintiff's own E. 647; Lopez v. Campbell, 163 N. Y. 340-315,

testimony that he had passed under this bridge 57 N. E. 501; Heller v. Cohen, 154 N. Y. 299 1 daily for three weeks, and several times while 305, 48 N. E. 527; In re Chapman, 162 N. Y.

riding on top of cars, and that he was charge 456 459, 56 N. E. 994. It will be observed that able with knowledge of the danger, assumed in such cases the reversal is not upon a disthe risk,

was guilty of contributory negli cretionary ground, such as setting aside the gence, and should have been nonsuited. 116 verdict as against the weight of evidence, but N. Y. 628, 22 N. E. 1117. The third trial was upon the merits. The appellate division possessin 1890, and plaintiff was nonsuited. The gen es no greater authority in considering the facts eral term affirmed the judgment entered thereon or a verdict than the trial court. If the trial (92 Hun, 219, 36 N. Y. Supp. 274), but it was court could not nonsuit plaintiff or direct a reversed by the court of appeals, upon the verdict for defendant, this court cannot accomground that, plaintiff having changed his testi- plish that result by directing judgment absomony and having testified that he never rode lute for defendant. The court of appeals havunder the bridge on top of a car and was not ing decided, on a record which is not distin. aware that the bridge was dangerously low, guishable from that now under review, that the his credibility was for the jury, and that, if case presented a question of fact requiring its bis latest version was believed by them, he submission to the jury, it is not competent for would have been entitled to a verdict. 155 N. this court to decide that controverted question 1. 158, 49 N. E. 672. The fourth trial was in of fact adversely to the determination of the 1898, and a verdict was rendered for $4,500, jury, and direct judgment absolute thereon for which was set aside by this court upon the the defendant. Pealey v. Bull, 163 N. Y. 397, ground that the finding of freedom from con- 57 N. E. 631; In re Chapman, 162 N. Y. 456 tributory negligence and that plaintiff did not 459, 56 N. E. 994; Lopez v. Campbell, 163 N. assume the risk was against the preponderance Y. 340-345, 57 N. E. 501; Bagley v. Rowe, 105. of the evidence. 39 App. Div. 647, 57 N. Y. N. Y. 171, 11 N. E. 386. In many of the states Supp. 203. Upon the fifth and last trial the the authority of the court has been expressly former testimony was read from the printed restricted by statute to granting two new trials record on the last appeal and from the stenog: on the ground that the verdict is contrary to or rapher's minutes, and no witness was produced against the weight of evidence. 14 Enc. Pl. & before the court or jury; the evidence thus be. Prac. 773–793. "In our state the authority vesting precisely the same as that presented on the ed in the trial court by statute to set aside a fourth trial, and practically the same as that verdict on the ground that it is contrary to or last considered by the court of appeals. The against the weight of evidence, and award a jury again rendered a verdict in favor of plain new trial, is unlimited as to the number of tiff for $4,900, which the trial court declined times it may be exercised. Code Civ. Proc. $ to set aside on a motion duly made upon the 999; Nutting v. Railroad Co., 91 Hun, 251minutes. It was stated by plaintiff's counsel 257, 36 N. Y. Supp. 142. It being, however, on the argument that, if a new trial should intended that the verdict in a case which must be again ordered, he is not aware of any fur- be submitted to the jury shall be conclusive up ther evidence that plaintiff can

present to on the facts, in the absence of legal error, or strengthen his case. It is contended by counsel ! bias, passion, prejudice, or corruption, the rulo

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and 100 New York State Reporter has become fairly established that, where two WOKAL v. BELSKY. (Supreme Court

, 4, ZFMAN successive verdicts are the same, the second will pellate Division, First Department. October 18 TALL. Apa not ordinarily be disturbed on this ground. 1900.) Action by Emanuel F. Wokal at el Tep Wilkie v. Roosevelt, 3 Johns. Cas. 206; Gilli- Wincy Belsky, impleaded. No opinion

. Man by D. Zgan v. Railroad Co., 1 E. D. Smith, 453; Seeley denied, with $10 costs. See 65 N. Y. Supp, si lethal. v. Shaffer (Sup.) 10 N. Y. Supp. 283; Nichols v. Tuttle (Sup.) 12 N. Y. Supp. 394; Yeandle v. Yeandle (Sup.) 16 N. Y. Supp. 49; Haring v. Railroad Co., 13 Barb. 16; Fowler v. Insurance

WOODBURN, Respondent, v. HYATT

. #

CU Co. 7 Wend. 275; Betsinger v. Chapman, 24 pellant. (Supreme Court, Appellate Dirisa. Hun, 16; Barrett v. Railroad Co., 45 App. Div. Second Department. October 5, 1900.) Action 225-229, 61 N. Y. Supp. 9; King v. Association, by Marie Woodburn against Cornelius Hic 87 Hun, 584–591, 34 N. Y. Supp. 563; Nugent No opinion. Judgment affirmed, with easi v. Railway Co., 46 App. Div. 105–109, 61 N. Y. See 54 N. Y. Supp. 597. Supp. 476. A second verdict has sometimes been set aside, and an exception to the rule exists where the circumstances are extraordinary and the verdict is clearly outrageous. Dorwin

WOODRUFF, Respondent, v. DENNISONA v. Westhrook, 11 App. Div. 3;14, 42 N. X Supe: vision, Fourth Department. October 9. 1**

al., Appellants. (Supreme Court

, Appellate li 1123, atlirmed in 158 N. Y. 742, 53 N., E. 1124; in the matter of the application of Sidney 1 Nutting v. Railroad Co., 91 Hun, 251-257, 36 Woodruff for removal from certain premises i N. Y. Supp. 112; 1d., 21 App. Div. 73-75, 47 N. the city of Buffalo of Everard C. Dennison el Y. Supp. 327: Hamilton v. Railroad Co., 40

another, Super. Ct. 377, 378; Scheftel v. Hatch (Sup.) 25 N. Y. Supp. 240; Kummer v. Railroad Co., PER CURIAM. Judgment of municipal Mr. 14 Misc. Rep. 507, 35 N. Y. Supp. 1066; Clark reversed, with costs. Held, that the electie v. Jenkins. 162 Mass. 397, 38 N. E. 974, and of the petitioner to terminate the lease bp mot cases cited. The usual considerations which son of the failure of his tenants to pay rent lead an appellate court to hesitate before set- did not create an expiration of term, within the ting a verdict aside, as against the weight of meaning of section 2231, subd. 1, Code Or. evidence, are that the jury and trial court have Proc., and summary proceedings cannot

, there had an opportunity to observe the demeanor of fore, be maintained on that ground. See la ze the witnesses upon the stand, and by reason Guaranty Building Co., 52 App. Div. 140, 64. 'thereof are in a better position to judge of Y. Supp. 1056; Kelly v. Varnes, 52 App. Dir. their credibility. This consideration can have 100, 64 N. Y. Supp. 1040. no weight on this appeal, for the reason that the jury and trial court have had no greater opportunity to observe the witnesses or judge of their credibility than is afforded to us. In

WRIGHT, Respondent, v. PENNSYLVANIA view of our last decision, it was, therefore, the R. CO., Appellant. (Supreme Court, Appeller duty of the trial judge to set this verdict aside; 1900.) 'Action

by Anna M. Wright against the

Division, Second Department. October 19 and that error may now be corrected, without Pennsylvania Railroad Company. No opinia determining whether the facts are of such an Judgment and order unanimously afirmed, with extraordinary character as to make the case an

costs. exception to the ordinary rule above stated with reference to setting aside verdicts as against the weight of evidence. The judgment and order appealed from should be reversed. and a new pellant. (Supreme Court, Appellate Diristica

WUNCH, Respondent, v. SHANKLAND, A? trial granted, with costs to appellant to abide Fourth Department. October 9, 1900. Aeria the event.

by Edward Wunch against David Shanklar
as president, etc. No opinion. Order affirmat


without costs. WILLIAMSON, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Howard Williamson, Appellants.' (Supreme Court, Appellate Division

WYTHE, Respondent, v. DENIKE et al

. an infant, by Louise Williamson, his guardian Second Department. October 19, 1900.) Action ad litem,' against the Brooklyn Heights Rail- by James A. Wythe, as receiver, etc., against road Company. No opinion. Motion for rear. Mary A. Denike and another. No opinion. Lgument, or for leave to appeal to the court of tion for reargument denied. appeals, denied. See 65 N. Y. Supp. 1054.

YORK HAVEN PAPER CO. Y. PLACE WILLMAN, Respondent, v. PRESS PUB. CO., (Supreme Court, Appellate Division, First Da Appellant. (Supreme Court, Appellate

Division, partment. July 17, 1900.) Action by the Ferk Second Department. October 19, 1900.) AC- Haven Paper Company against Josiah W. Place tion by Oscar P. Willman against the Press No opinion. Motion denied, with $10 costa Publishing Company. No opinion. Motion for See 64 N. Y. Supp. 715, and 43 N. Y. Supp reargument denied. See 63 N. Y. Supp. 515. | 81.

47 EEMAN et al., Respondents, V. ROSEN-in writing. We think that no error was com

LAL, Appellant. (City Court of New York, mitted, and the judgment must be affirmed, Éneral Term. October 29, 1900.) Action by with costs.

lac D. Zeeman and another against Joseph senthal. From a judgment for plaintiffs, de

ZELLER, Respondent, V, NEW YORK & adant appeals. Affirmed. Louis Levy, for ap- B. BREWING CO., Appellant. (Supreme Court, Jant. Max D. Steuer, for respondents.

Appellate Division, Second Department. July PER CURIAM. The promise of defendant 17, 1900.) Action by John Zeller against the is not a promise to answer for the debt or de New York & Brooklyn Brewing Company. No ult of another. It was an original promise. opinion. Judgment of the municipal court afwas not necessary that it should have been 'firmed, with costs.

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§ 2. Proceedings and relief.

Where a complaint for accounting states &
Of nuisance, see “Vuisance," $ 1.

cause for equitable cognizance, the fact that
an accounting is rendered unnecessary by de-

fendant's failure to produce any evidence is
ABATEMENT AND REVIVAL. not cause for dismissal on the ground that the

case as proven is not one for equitable relief,
Right of action by or against personal repre and complainant has an adequate remedy at
sentatire, see "Esecutors and Administra- | law.-Moore v. Moore (Sup.) 167.

tors," $ 4.
§ 1. Death of party and revival of ac ACCOUNT, ACTION ON.

Where an order was entered allowing defend- Copies of accounts alleged or annexed in plead-
ant additional costs after dismissal of com ing, see "Pleading,” g 6.
plaint, and complainant died before entry of
judgment, her executor was properly substi-

tuted as plaintiff.- Armstrong v. Trustees of
Union College (Sup.) 942.

Of right of action, see “Limitation of Ac-

tions,” 8 1.

Compensation for taking of or injury to lands
or easements for public use, see "Eminent See “Wills," $ 5.
Domain," $81, 3.


Operation and effect of admissions as evi-
Annexation of personal to real property, see

dence, see "Evidence," $ 3.


Abatement, see "Abatement and Revival."
See "Compromise and Settlement”; “Pay- Accrual, see "Limitation of Actions," § 1.
ment"; "Release."

Between parties in particular relations, see

“Brokers,” $ 2; “Master and Servant,” 88 2,
A finding of the jury that plaintiff had ac 3; “Partnership," $8 2, 5.
cepted goods in full accord and satisfaction of co-tenants, see “Partition," $ 2.
his debt, hed not contrary to the evidence. Courts of limited jurisdiction in general, see
Mautner v. Pike (Sup.) 387.

"Courts," $ 3.

Criminal prosecutions, see "Criminal Law."

Jurisdiction of courts, see "Courts.

Limitation by statutes, see "Limitation of Ac-
Accounting between partners, see “Partner-

ship," $$ 4, 5.

Particular forms of action, see “Attachment”;
by assignee for benefit of creditors, see

"Ejectment”; “Replevin"; "Trover and Con-
"Assignments for Benefit of Creditors," $ 3.

by executor or administrator, see "Execu-

remedies in or incident to actions, see
tors and Administrators," g.

“Discovery"; “Injunction”; "Receivers”;

Copies in of accounts alleged of annexed in Penal and qui tam actions, see “Penalties," $ 1.
pleading, see "Pleading," $ 6.

Review of proceedings, see "Appeal"; "Cer-

tiorari”; "Judgment," $ 4; “Justices of the
$1. Right of action and defenses.

Peace," $ 2; “New Trial."
Right of plaintiff to an accounting sunder an Set-off,"see Set-Off and Counterclaim."
igreement held barred by a subsequent agree. Suits in equity, see "Equity.”.
ment for a definite sum for services rendered. in justices' courts, see "Justices of the
-Spier v. Hyde (Sup.) 120.

Peace," $ 1.
66 N.Y.S.-73


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