Steinau v. Gorham — 67 N.Y.S. 628

Majority

p. 628

STEINAU v. GORHAM et al.

(Supreme Court, Appellate Division, First Department.

December 21, 1900.)

Headnote

Appeal—Order Denying New Trial—Reversal on Condition.

Where there was a misapprehension as to the rights of the parties before the court at the time of trial, resulting in injustice, on defendants’ appeal from a judgment dismissing their counterclaim, to which no exception was taken entitling them as a matter of right to a retrial of such counterclaim, the whole judgment will he reversed, without costs to either party, if defendants will stipulate to agree thereto; otherwise, the order denying a new trial will he affirmed.

Appeal from trial term, New York county.

Action by Charles J. Steinau against Augustus S. Gorham and another. From a judgment dismissing their counterclaim and an order denying a new trial thereon, defendants appeal.

Reversed on condition.

p. 629

Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHHN, PATTERSON, and O’BRIEN, JJ.

William P. Quinn, for appellants.

B. G. Oppemheim, for respondent.

We are satisfied from the record in this case that there was a misapprehension as to the rights of the parties before the court at the time of the trial, and that probable injustice has resulted from such misapprehension. We are of the opinion that this situation can only be completely remedied by a retrial of all the issues involved in the case. The defendants have taken no exception entitling them as a matter of right to a retrial as to their counterclaim, which we might possibly grant as a matter of favor upon their appeal from the order denying the motion for new trial. Our conclusion, therefore, is that, if the defendants will stipulate to agree to a reversal of the whole judgment, the same will be reversed, without costs to either party; if not, the order denying the motion for a new trial will be affirmed, with costs.