Majority
p. 424Bohlen v. Metropolitan El. Ry. Co. et al. (Superior Court of New York City, General Term. March 4, 1890.) Argued before Sedgwick, C. J., and Dugro, J.
Headnote
Teial by Coubt—Motion to Amend Findings.Conflict in the findings of fact by the court without a jury is a judicial error, and cannot be corrected after judgment on a motion made at a term other than that at which the judgment was rendered.
Appeal from special term.
Action by Henry Bohlen against the Metropolitan Elevated Bailway Company and the Manhattan Bailway Company. The special term, after judgment, made an order amending a finding of the judge, who tried the case without a jury, and defendants appeal.
Davies & Rapallo, for appellants. Sackett & Bennett, for respondent.
The general term of this court recently held in Pappenheim v. Railway Co., 7 N. Y. Supp. 679 , that findings of fact such as appear in the decision of this case are in irreconcilable conflict. Adopting this as a proper conclusion, it seems that it is impossible, from the record before us, to say
p. 425
which of the conflicting findings is correct. The error sought to be remedied by the order appealed from is therefore judicial, and cannot be corrected after judgment upon a motion made at a term other than that at which the judgment was rendered. Rockwell v. Carpenter, 25 Hun, 529 ; McLean v. Stewart, 14 Hun, 472 ; Gardiner v. Schwab, 34 Hun, 583 ; Freem. Judgm. §§ 70, 101. The order should be reversed.