Minck v. Brooklyn Heights Railroad — 138 N.Y.S. 101

Majority

p. 101

MINCK et al. v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Term, Second Department.

March, 1912.)

Headnote

Appeal and Error (§ 1011?)—Findings—Conclusiveness.

The Appellate Term must affirm a judgment on conflicting evidence, though at variance With another judgment growing out of the same transaction, rendered by the trial court_and affirmed toy the Appellate Division.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]

•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of Brooklyn, Third District.

Action by Julius Minck and another against the Brooklyn- Heights Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Argued March term, 1912, before GARRETSON, STAPLETON, and KAPPER, JJ.

Louis Burstein, of Brooklyn, for appellants.

George D. Yeomans, of Brooklyn, for respondent.

Although there has been a judgment rendered, and affirmed by the Appellant Division at variance with the judgment rendered by the trial court here, upon facts growing out of the same accident, unless we are in a position to require the trial court to reach a different conclusion than it has already reached upon conflicting evidence, this judgment should be affirmed.

As it is obvious we have no such power, the judgment must be affirmed, with costs.