Genet v. President of Delaware & Hudson Canal Co.

Majority

p. 608

Augusta G. Genet, Respondent and Appellant, v. The President, Managers and Company of The Delaware and Hudson Canal Company, Appellant and Respondent. Same, Respondent and Appellant, v. Same, Appellant and Respondent.

(Argued April 19, 1901;

decided June 4, 1901.)

Headnote

Genet v. D. & H. Oanal Go., 38 App. Div. 631 , reversed.

Cross-appeals from two judgments of the Appellate Division of the Supreme Court in the first judicial department, entered April 7, 1899, affirming two judgments in favor of plaintiff, entered upon the report of a referee.

Frank F. Smith for defendant, appellant and respondent.

George O. Genet for plaintiff, respondent and appellant.

These two actions, the same in character, are similar to one hitherto reviewed by this court, a report of which may be found in 163 N. Y. page 173. The cases were tried and determined before our decision in the case cite'd, and the plaintiff was allowed the value of the small coal passing through a half-inch mesh. We have held that the plaintiff was only entitled to the contract royalty of twelve and a half cents a ton on such coal, not its value. In accordance with our decision in the previous case, we must, therefore, reduce plaintiff’s recoveries in these actions to the amounts of such royalties.

The plaintiff appealed because she was not allowed the value of culm used by the defendant under its boilers at the mines.

p. 609

The referee has found that the defendant did not take or consume any culm which belonged to the plaintiff. This finding of fact having been unanimously affirmed by the Appellate Division is conclusive upon us, and Ave cannot look into the record to see if there was evidence to support it. (Marden v. Dorthy, 160 N. Y. 39 .) The plaintiff’s appeal must, therefore, fail.

The judgment in each action must be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce her recovery of damages in action No. “4” to the sum of $2,907.58, and her extra allowance to $145.35, and in action No. “ 6 ” her recovery of damages to the sum of $2,026.97, and her extra allowance to $101.35, in which case the judgments as reduced are affirmed, without costs of appeal in this court to either party.

Parker, Oh. J., O’Brien, Bartlett, Martin, Yann and Landon, JJ., concur.

Judgment accordingly.

Cases cited

Marden v. Dorthy 160 N. Y. 39 N.Y. 1899-10-03 p. 609