Majority
p. 278Henry Bohlen, Resp’t, v. The Metropolitan Elevated Railway Co. and The Manhattan Railway Co., App’lts. (New York Superior Court, General Term, Filed March 4, 1890.)
Headnote
Tbial—Irreconcilable findings.When the findings of fact are in irreconcilable conflict, so that it is impossible to say which is correct, the error cannot he corrected after judgment on motion made at a term other than that at which the judgment, was entered.
Appeal from an order made at special term opening the judgment in the action and amending certain findings upon the payment of costs and disbursements to the defendants. The amendment in each instance consists simply in the insertion in the said findings, respectively, of the words “ except as hereinafter found.” The said findings relate to the opening of Second avenue and Sixty-fifth street under the provisions of the act of 1813.
Charles Gibson Bennett, for resp’t; Davies & Rapallo, for app’lts,
The general term of this court recently held in Pappenheim v. The metropolitan Railway Company and another, 28 N. Y. State Rep., 577, 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 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,
p. 279
14 id., 472; Gardiner v. Schwab, 34 id., 583; Freeman on Judgments, § 70, 101.
The order should be reversed.
Sedgwick, Ch. J., concurs.