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LAUGHLIN, J. (concurring in result). In view of the questions presented and argued on his appeal, I regard the decision made by the najority of the court as indicating a determination to allow no verdict that may be rendered solely upon the evidence contained in this record to stand. Being of opinion that this is usurping the functions of the jury to an unwarranted extent, I state the case and the reasons which lead me to vote for reversal. Plaintiff was a brakeman in the employ of defendant, and the action was brought to recover damages for personal injuries sustained by him by contact with a low bridge under which his train was passing in broad daylight on the 8th day of July, 1882, in the village of Norwich. At the time of receiving the injuries plaintiff was standing on top of one of the cars, facing in the opposite direction. There have been five trials of the issues. The first trial was in 1884, and resulted in a verdict of $4,000, which was set aside on appeal, on exceptions; the court ruling that on the main questions a case was made for presentation to the jury. 39 Hun, 430. In 1886, on the second trial, the plaintiff recovered a verdict of $4,900. The judgment entered upon this verdict was sustained by the general term (43 Hun, 633), but reversed by the court of appeals, upon the ground that it appeared from plaintiff's own testimony that he had passed under this bridge daily for three weeks, and several times while riding on top of cars, and that he was chargeable with knowledge of the danger, assumed the risk, was guilty of contributory negligence, and should have been nonsuited. 116 N. Y. 628, 22 N. E. 1117. The third trial was in 1890, and plaintiff was nonsuited. The general term affirmed the judgment entered thereon (92 Hun, 219, 36 N. Y. Supp. 274), but it was reversed by the court of appeals, upon the ground that, plaintiff having changed his testimony and having testified that he never rode under the bridge on top of a car and was not ware that the bridge was dangerously low, his credibility was for the jury, and that, if his latest version was believed by them, he would have been entitled to a verdict. 155 N. Y. 158, 49 N. E. 672. The fourth trial was in 898, and a verdict was rendered for $4,500, which was set aside by this court upon the round that the finding of freedom from conributory negligence and that plaintiff did not ssume the risk was against the preponderance f the evidence. 39 App. Div. 647, 57 N. Y. Supp. 203. Upon the fifth and last trial the ormer testimony was read from the printed ecord on the last appeal and from the stenogapher's minutes, and no witness was produced efore the court or jury; the evidence thus beog precisely the same as that presented on the ourth trial, and practically the same as that st considered by the court of appeals. The ry again rendered a verdict in favor of plainff for $4,900, which the trial court declined o set aside on a motion duly made upon the inutes. It was stated by plaintiff's counsel a the argument that, if a new trial should e again ordered, he is not aware of any furer evidence that plaintiff can present to rengthen his case. It is contended by counsel

for appellant that another new trial would be futile, and that the judgment and order should be reversed, and judgment absolute directed in favor of defendant. On the other hand, counsel for plaintiff contends that, four successive verdicts having been rendered by the jury, it is now the duty of this court to acquiesce in the verdict and affirm the order. Section 1317 of the Code of Civil Procedure provides that the appellate division may reverse or affirm, in whole or in part, the order or judgment appealed from, or may modify the same, "and it may, if necessary or proper, grant a new trial or hearing." Our only authoritative precedents for refraining from granting a new trial on reversal, and for directing judgment absolute against the respondent, are cases where the facts have been found by the trial court, or are conceded or undisputed or established by official records, or where it is evident "that no possible state of proof applicable to the issues in the case will entitle" him to recover,-in other words, where it clearly appears affirmatively that respondent cannot succeed on a new trial. Hendrickson v. City of New York, 160 N. Y. 144-150, 54 N. E. 680; Edmundston v. McLoud, 16 N. Y. 543, 544; New v. Village of New Rochelle, 158 N. Y. 41. 52 N. E. 647; Lopez v. Campbell, 163 N. Y. 340-345, 57 N. E. 501; Heller v. Cohen, 154 N. Y. 299305, 48 N. E. 527; In re Chapman, 162 N. Y. 456-459, 56 N. E. 994. It will be observed that in such cases the reversal is not upon a dis cretionary ground, such as setting aside the verdict as against the weight of evidence, but upon the merits. The appellate division possesses no greater authority in considering the facts or a verdict than the trial court. If the trial. court could not nonsuit plaintiff or direct a verdict for defendant, this court cannot accomplish that result by directing judgment absolute for defendant. The court of appeals having decided, on a record which is not distin guishable from that now under review, that the case presented a question of fact requiring its submission to the jury, it is not competent for this court to decide that controverted question of fact adversely to the determination of the jury, and direct judgment absolute thereon for the defendant. Fealey v. Bull, 163 N. Y. 397, 57 N. E. 631; In re Chapman, 162 N. Y. 456459, 56 N. E. 994; Lopez v. Campbell, 163 N. Y. 340–345, 57 N. E. 501; Bagley v. Rowe, 105N. Y. 171, 11 N. E. 386. In many of the states the authority of the court has been expressly restricted by statute to granting two new trials on the ground that the verdict is contrary to or against the weight of evidence. 14 Enc. Pl. & Prac. 773-793. In our state the authority vested in the trial court by statute to set aside a verdict on the ground that it is contrary to or against the weight of evidence, and award a new trial, is unlimited as to the number of times it may be exercised. Code Civ. Proc. § 999; Nutting v. Railroad Co., 91 Hun, 251257, 36 N. Y. Supp. 142. It being, however, intended that the verdict in a case which must be submitted to the jury shall be conclusive upon the facts, in the absence of legal error, or bias, passion, prejudice, or corruption, the rule

and 100 New York State Reporter

has become fairly established that, where two |
successive verdicts are the same, the second will
not ordinarily be disturbed on this ground.
Wilkie v. Roosevelt, 3 Johns. Cas. 206; Gilli-
gan v. Railroad Co., 1 E. D. Smith, 453; Seeley
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
Co., 7 Wend. 275; Betsinger v. Chapman, 24
Hun, 16; Barrett v. Railroad Co., 45 App. Div.
225-229, 61 N. Y. Supp. 9; King v. Association,
87 Hun, 584-591, 34 N. Y. Supp. 563; Nugent
v. Railway Co., 46 App. Div. 105-109, 61 N. Y.
Supp. 476. A second verdict has sometimes
been set aside, and an exception to the rule ex-
ists where the circumstances are extraordinary

and the verdict is clearly outrageous. Dorwin
v. Westbrook, 11 App. Div. 394, 42 N. Y. Supp:
1123, affirmed in 158 N. Y. 742, 53 N. E. 1124;
Nutting v. Railroad Co., 91 Hun, 251-257, 36
N. Y. Supp. 142; Id., 21 App. Div. 73-75, 47 N.
Y. Supp. 327: Hamilton v. Railroad Co., 40
Super. Ct. 377, 378; Scheftel v. Hatch (Sup.)
25 N. Y. Supp. 240; Kummer v. Railroad Co.,
14 Misc. Rep. 507, 35 N. Y. Supp. 1066; Clark
v. Jenkins, 162 Mass. 397, 38 N. E. 974, and
cases cited. The usual considerations which
lead an appellate court to hesitate before set-
ting a verdict aside, as against the weight of
evidence, are that the jury and trial court have
had an opportunity to observe the demeanor of
the witnesses upon the stand, and by reason
thereof are in a better position to judge of
their credibility. This consideration can have
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.
view of our last decision, it was, therefore, the
duty of the trial judge to set this verdict aside;
and that error may now be corrected, without
determining whether the facts are of such an

In

extraordinary character as to make the case an 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 trial granted, with costs to appellant to abide

the event.

WILLIAMSON, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Howard Williamson, an infant, by Louise Williamson, his guardian ad litem, against the Brooklyn Heights Railroad Company. No opinion. Motion for reargument, or for leave to appeal to the court of appeals, denied. See 65 N. Y. Supp. 1054.

WILLMAN, Respondent, v. PRESS PUB. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 19, 1900.) Action by Oscar P. Willman against the Press Publishing Company. No opinion. Motion for reargument denied. See 63 N. Y. Supp. 515.

WOKAL V. BELSKY. (Supreme Court, A pellate Division, First Department. October 1900.) Action by Emanuel F. Wokal ag Wincy Belsky, impleaded. No opinion. Motz denied, with $10 costs. See 65 N. Y. Supp.

WOODBURN, Respondent, v. HYATT A pellant. (Supreme Court, Appellate Divis Second Department. October 5, 1900.) Acti by Marie Woodburn against Cornelius H No opinion. Judgment affirmed, with cost See 54 N. Y. Supp. 597.

al., Appellants. (Supreme Court, Appellate I WOODRUFF, Respondent, v. DENNISON vision, Fourth Department. October 9, 1900 In the matter of the application of Sidney H Woodruff for removal from certain premises the city of Buffalo of Everard C. Dennison an

another.

PER CURIAM. Judgment of municipal cour reversed, with costs. Held, that the electi of the petitioner to terminate the lease by reson of the failure of his tenants to pay rest did not create an expiration of term, within the meaning of section 2231, subd. 1, Code Chr. Proc., and summary proceedings cannot, there fore, be maintained on that ground. See In re Guaranty Building Co., 52 App. Div. 140, 64 N. Y. Supp. 1056; Kelly v. Varnes, 52 App. Dir. 100, 64 N. Y. Supp. 1040.

WRIGHT, Respondent, v. PENNSYLVANIA R. CO., Appellant. (Supreme Court, Appellate 1900.) Action by Anna M. Wright against the Division, Second Department. October 19 Pennsylvania Railroad Company. No opinio Judgment and order unanimously affirmed, with

costs.

pellant. (Supreme Court, Appellate Division WUNCH, Respondent, v. SHANKLAND, AP Fourth Department. October 9, 1900.) Action by Edward Wunch against David Shanklan as president, etc. No opinion. Order affirmet without costs.

WYTHE, Respondent, v. DENIKE et al. Appellants. (Supreme Court, Appellate Division, Second Department. October 19, 1900.) Action by James A. Wythe, as receiver, etc., against Mary A. Denike and another. No opinion. M tion for reargument denied.

YORK HAVEN PAPER CO. v. PLACE (Supreme Court, Appellate Division, First De partment. July 17, 1900.) Action by the York Haven Paper Company against Josiah W. Place No opinion. Motion denied, with $10 costs. See 64 N. Y. Supp. 715, and 43 N. Y. Supp 81.

1

ZEEMAN et al., Respondents, v. ROSEN-in writing. We think that no error was comHAL, Appellant. (City Court of New York, mitted, and the judgment must be affirmed, eneral Term. October 29, 1900.) Action by with costs. saac D. Zeeman and another against Joseph osenthal. From a judgment for plaintiffs, de-ndant appeals. Affirmed. Louis Levy, for apllant. Max D. Steuer, for respondents. PER CURIAM. The promise of defendant as not a promise to answer for the debt or deult of another. It was an original promise. was not necessary that it should have been

ZELLER, Respondent, v. NEW YORK & B. BREWING CO., Appellant. (Supreme Court, Appellate Division, Second Department. July 17, 1900.) Action by John Zeller against the New York & Brooklyn Brewing Company. No opinion. Judgment of the municipal court affirmed, with costs.

END OF CASES IN VOL 66.

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Of right of action, see "Limitation of Ac-
tions," § 1.

ACCUMULATIONS.

Compensation for taking of or injury to lands
or easements for public use, see "Eminent See "Wills," § 5.
Domain," §§ 1, 3.

ACCESSION.

Annexation of personal to real property, see
"Fixtures."

ACCORD AND SATISFACTION.

See "Compromise and Settlement"; "Pay-
ment"; "Release."

A finding of the jury that plaintiff had ac-
cepted goods in full accord and satisfaction of
his debt, held not contrary to the evidence.
Mautner v. Pike (Sup.) 387.

ACCOUNT.

Accounting between partners, see "Partner-
ship," §§ 4, 5.

by assignee for benefit of creditors, see
"Assignments for Benefit of Creditors," § 3.
by executor or administrator, see "Execu-
tors and Administrators," § 5.

by trustee, see "Trusts," § 4.
Copies of accounts alleged or
pleading, see "Pleading," § 6.

ACKNOWLEDGMENT.

Operation and effect of admissions as evi-
dence, see "Evidence," § 3.

ACTION.

Abatement, see "Abatement and Revival."
Accrual, see "Limitation of Actions," § 1.
Between parties in particular relations, see
"Brokers," § 2; "Master and Servant," §§ 2,
3; "Partnership," §§ 2, 5.

co-tenants, see "Partition," § 2.
Courts of limited jurisdiction in general, see
"Courts," § 3.

Criminal prosecutions, see "Criminal Law."
Jurisdiction of courts, see "Courts."
Limitation by statutes, see "Limitation of Ac-
tions."

Particular forms of action, see "Attachment";
"Ejectment"; "Replevin"; "Trover and Con-
version."

remedies in or incident to actions, see
"Discovery"; "Injunction"; "Receivers";
"Tender."

annexed in Penal and qui tam actions, see "Penalties," § 1.
Review of proceedings, see "Appeal"; "Cer-
tiorari"; "Judgment,' § 4; "Justices of the
Peace," & 2; "New Trial."

1. Right of action and defenses.
Right of plaintiff to an accounting under an
igreement held barred by a subsequent agree-
nent for a definite sum for services rendered.
-Spier v. Hyde (Sup.) 120.

66 N.Y.S.-73

Set-off, see "Set-Off and Counterclaim."
Suits in equity, see "Equity."

(1153)

in justices' courts, see "Justices of the
Peace," § 1.

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