Third Avenue Railroad v. Ebling — 10 Daly (N.Y.) 325

Majority

p. 325

The Third Avenue Railroad Company, Appellant, against Jacob Ebling et al., Respondents.

(Decided January 4th, 1882.)

Headnote

Upon trial by jury of an action in the Marine Court of the City of New York, at which exceptions were taken by both parties, the jury found a general verdict for the defendants; but the justice presiding subsequently, on motion of the plaintiff, ordered a verdict for the plaintiff, and that judgment he entered in favor of the plaintiff, and exceptions be heard in the first instance at the general term. Held, that such order and judgment were properly reversed by the general term of the Marine Court; but that a further direction of the general term that judgment be entered in favor of the defendants on the issues joined in the action, in accordance with the verdict of the jury, was erroneous, and that from the judgment so entered an appeal could be taken to this court, upon which such judgment and so much of the order of the general term as directed it must be reversed.

Appeal from a judgment of the general term of the Marine Court of the City of New York, and frond an order of said general term vacating an order of that court which directed a verdict and the entry of judgment thereon, and ordering the entry of the judgment also appealed from.

The facts are stated in the opinion.

H. Morrison, for appellant.

Hall & Blandy, for respondents.

The trial of this action was had in the Marine Court on January 28th, 1881, and the jury on that day rendered a general verdict for defendants. The trial justice afterwards, on February 2d, 1881, entertained a motion on the part of the plaintiff for judgment in his favor, and on February 8th, 1881, made an order that there be a verdict for the plaintiff and a judgment be entered in his favor for $358.25 damages and costs, and that exceptions be heard in the first instance at the general term, and that ail proceedings be stayed in the meantime except entry of judgment. Judgment was entered on this order by plaintiffs on February 9th, 1881, for $358.25.

The general term of the Marine Court held this order and the judgment entered thereon to be unauthorized and reversed them, but also ordered that judgment should be entered in the action in favor of defendants upon the issues formed in the action, in accordance with the verdict of the jury ; and judgment was accordingly entered by defendants. From this order and judgment of the general term the plaintiff appeals to this court.

The action of the general term reversing the order of the trial justice directing a verdict for plaintiff, after the jury had renctered a general verdict for the defendants, and reversing the judgment entered on said order, was proper, but it was error to go further and direct a judgment for defendants upon the issues in the action, for this became in effect a decision of the general term upon the whole case, and) the judgment entered in accordance with that order was a judgment of the general term. The plaintiff who was aggrieved by the verdict of the jury was thus cut off from obtaining a review of the facts, and of his exceptions, by the decision of the general term upon the case and exceptions made by the defendants, and as this judgment of the general term was final he had his appeal to this court. Had the general term merely reversed the order of the trial justice and the plaintiff’s judgment entered thereon, the defendants could have entered their judgment on their verdict, and the plaintiff could have then appealed, but the general term went further and ordered judgment upon the issues against him.

p. 327

We must reverse so much, of the judgment of the general term and so much of its order as orders judgment for defendants, leaving defendants to enter their judgment on the verdict of the trial term, from which plaintiff may have an appeal and a review by the general term of the Marine Court. As plaintiffs appeal from the whole of the order and judgment of the general term, and the order is reversed in part only, no costs of this appeal will be allowed.

Van Hoesen, J., concurred.

Judgment in favor of the defendants reversed, with so much of the order of the general term of the Marine Court as directed final judgment for defendants; and so much of that order as reversed the order of the special term, affirmed.