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Demby v. New York City Railway Co.

108 N.Y.S. 656 Court N.Y. App. Term Decision date 1908-01-31 English

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p. 656
DEMBY v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
January 31, 1908.)

Headnote

Appeal—Review—Disposition or Cause.
Where an action is tried before the handing down of opinions in other cases, the law of which would illumine the case already tried, the appellate court will, on appeal from such case, reverse and remand for a new trial.
[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4597-4620.]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Gussie Demby against the New York City Railway Company to recover a penalty for refusal to accept a transfer. From a judgment for plaintiff, defendant appeals) Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and McCALL and FORD,, JJ.
James L. Quackenbush (Henry F. Gannon, of counsel), for appellant.
B. M. IComroff, for respondent.

This action to recover a penalty for refusing to accept a transfer was tried before the decisions of the Appellate Division in Nicholson v. N. Y. City Ry. Co., 118 App. Div. 858 , 103 N. Y. Supp. 695 , and Kelly v. Same, 119 App. Div. 223 , 104 N. Y. Supp. 561 . The plaintiff obtained judgment, and the defendant appeals.

The testimony herein is of such a character that we think the interests of justice require a new trial should be had, illumined by the law as declared by the opinions handed down in the cases above cited. Other grounds urged by the appellant are worthy of discussion, but need not be now considered, in view of the conclusion reached.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

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