Morgan v. Metropolitan St. Railway Co. — 64 N.Y.S. 826

Majority

p. 826

MORGAN et al. v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

May 25. 1900.)

Headnote

Appeal—Certifícate op Trial Judge—Record.

Where the record oí a cause contains a certificate of the trial court that defendant’s motion to dismiss the complaint was granted, and that the cause was submitted to the jury, which returned a verdict thereon, the judgment will not be’reversed on the grounds that the cause should have been submitted to the jury, as it appears from the certificáte that it was so submitted.

Appeal from appellate term.

Action by Morgan E. Morgan and others against the Metropolitan Street-Railway Company. From a judgment of the appellate term ( 59 N. Y. Supp. 1110 ) affirming a judgment of the municipal court in favor of defendant, plaintiffs appeal.

Affirmed.

Argued before HATCH, EUMSEY, McLAUGHLIN, PATTERSON, and INGRAHAM, JJ.

Charles F. Bliss, for appellants.

Charles F. Brown, for respondent.

The substantial ground of this appeal is that the issues relating to the negligence of the defendant and the contributory negligence of the plaintiff should have been submitted to the jury.

p. 827

The record shows that was done, for it contains a certificate of the justice of the municipal court in which the cause was tried that “counsel for the respective parties then summed up the case, and thereupon submitted to the jury for its decision and determination. The jury rendered a verdict for the defendant thereupon.” It is true that there is a statement immediately preceding that quoted that a motion was made to dismiss the complaint, and that the motion was granted, but the certificate of the justice indicates that the ruling was not adhered to, and that the cause was submitted to the jury, and a verdict rendered. In this condition of the record, the judgment must be affirmed, with costs.