Hyperlawhypertext legal database McGean v. Metropolitan Elevated Railway Co. 15 N.Y.S. 114

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McGean v. Metropolitan Elevated Railway Co.

15 N.Y.S. 114 Court N.Y. Super. Ct. Decision date 1891-05-04 English

Contents

Majority

p. 114
McGean v. Metropolitan El. Ry. Co. et al.
(Superior Court of New York City, General Term.
May 4, 1891.)

Headnote

Appeal—Remand—Inconsistent Findings.
Where a conclusion, of law is so manifestly inconsistent with the findings of fact as to evidence-an oversight on the part of the trial judge, the cause will be remanded for such action as he may deem proper, and the decision of the appeal will be reserved until such action is taken.
Appeal from equity term.
Action by James H. McGean, as executor and trustee under the last will and testament of Delia Powers, deceased, against the Metropolitan Elevated Railway Company and the Manhattan Railway Company.for'damages caused by the construction and operation of defendants’ elevated railroad, and for an injunction. The finding at folio 87, referred to in the opinion, is one of the conclusions of law, and is as follows: “Sixth. The plaintiff does not own, and has never owned, in fee, any portion of the bed of Division street in front of the property described in the complaint.” The finding at folio 104 is one of the findings of fact, and is as follows: “(3) The plaintiff, James H. McGean, as executor and trustee under the last will and testament of said Delia Powers, deceased, from the 24th day of November, 1887, until June 21, 1889, when this action was commenced, and thereafter until March 20, 1890, was owned and seised in fee and in possession of the above-described land and street and easement.” There was a judgment for plaintiff, and defendant appeals.
Argued before Sedgwick, C. J., and McAdam, J.
Davies & Rapallo, (Julien T. Davies and Alexander S. Lyman, of counsel,) for appellants. Edward J. McGean, for respondent.

The findings at folios 87 and 104 are so nant to each other as to evidence an oversight on the part of the trial judge, to which his attention should be called before a decision of the appeal. Pappenheim v. Railway Co., 7 N. Y. Supp. 679 . The matter will therefore be remanded to the trial judge for such action as he deems proper, (see Bohlen v. Railway Co., 121 N. Y. 546 , 24 N. E. Rep. 932 ;) and the decision of the appeal will be reserved until the action of the trial judge is officially made known to the general term.

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