Butterfield v. Radde — 40 N.Y. Super. Ct. 169

Majority

p. 169

EDWIN L. BUTTERFIELD, Plaintiff, v. WILLIAM RADDE, Defendant. SELCHOW, Plaintiff, v. RADDE, Defendant.

Headnote

I. RE-ARGUMENT.

1. What not sufficient ground fob.

a. That after the affirmance by the general term of a judgment in favor of plaintiff, the court of appeals, without writing any opinion, or assigning any reason therefor, has reversed a judgment in favor of a different plaintiff in another action against the same defendant, involving the same facts and dependent on the same law as the action in which the re-argument is sought, involves and depends on, does not furnish sufficient ground to call for a re-argument on defendant’s application.

3. Stipulation as to several pending causes.

a. Effect of.

A stipulation that the verdict to be rendered in a cause on trial shall control and be conclusive in certain other causes, and that judgment be entered in such other causes accordingly, and that the same evidence, ruling, exceptions, and charges, shall be considered as inserted in such other cases as are in the cause on trial, and shall be as of record in all the causes, in terms applies to the trial only, and its force and effect is spent with the verdict.

Therefore the fact that the judgment entered on a verdict for plaintiff in one of the causes mentioned in the stipulation has been reversed in the court of appeals, does not of itself entitle the defendants in the other actions to a reversal of the judgments, and consequently not to a re-argument.

But

the spirit and intent of the stipulation, was substantially that the untried actions should abide the event of the one which was tried, and therefore under it the defendants in those actions are fairly entitled to obtain the benefit of the decision of the higher court in the case which has been decided there, and as on a re-argument they may satisfy the court that its former decision has been reversed, or is incorrect, and thus get the benefit of the decision of the higher court, a re-argument should he granted.

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Before Morell, Ch. J., and Sedgwick, J.

Decided December 6, 1875.

Motions for a re-argument of an appeal.

There were three cases pending against the same defendant, involving precisely the same questions of law and fact. All the cases being at issue and ready for trial, the attorneys made the following stipulation :

“Edwin L. Butterfield against William Radde.” It is hereby stipulated and agreed by the respective attorneys, that the verdict to be rendered in this cause now on trial . . shall control and be conclusive in the two following cases . . involving the same questions, to wit: “Mallory t>. The same defendant, and Selchow ®. The same defendant; and that judgment be entered accordingly; and that the same evidence, rulings, exceptions, and charges shall be considered as inserted in the same two cases as are in the above entitled cause, and shall be as of the record in all three of these causes against Radde.”

The trial of the Butterfield suit resulted in a verdict for the plaintiff; whereupon, under the stipulation, judgments w7ere entered in the three suits respectively, for the plaintiffs therein. Appeals were separately taken from the judgments to the general term of this court, where all the judgments were affirmed. An appeal was thereupon taken in the Mallory case, to the court of appeals—the other two judgments being under five hundred dollars, permission to appeal was refused—and in that court the judgments of the general and special term of this court were reversed. In the meanwhile, the two judgments not appealed from, were collected by the plaintiffs therein. .

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No opinion was written in the court of appeals, nor is it known upon what ground or grounds the judgments were reversed. The attorney opposing this motion, however, stated in his affidavit, that the clerk of the court of appeals informed him “that there was a dissenting opinion concurred in by three judges, and no prevailing opinion, but finally it was announced that there would be no opinion at all.” This is not denied.

D. C. Calvin, for the motion.

C. M. Earle, opposed.

The stipulation made by the attorneys, in terms, applied to the trial of the actions only. After verdict separate judgments were to be entered, and thereafter separate proceedings were to be had. Accordingly, separate appeals were taken to the general term, where separate judgments of affirmance were entered.

There is nothing, therefore, in the expressed terms of the stipulation—the office and effect of which was spent with the verdict—which can add force to the plaintiff’s motion.

These motions are addressed to the sound discretion of the court. They can not be claimed as a right.

One of the grounds upon which the motion is sometimes granted is, that since the decision, the court of appeals has decided adversely to this court, the precise question involved. In such a case the court, in the exercise of its discretion, will save the party the labor and expense of going to the higher court to correct what we must in that case assume to have been an error of this court.

Thus in Hayner v. American Popular Life Insurance Co. (36 Superior Ct. R. 211), having followed and

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relied on a case which was reversed by the court of appeals, this court granted a re-argument, on the ground that that decision should be regarded as stare decisis. In that case, however, no judgment or order had been entered in this court, the decision having been merely announced; and besides the decision of the court of appeals had actually been made, although not known, at the time of the argument of the appeal in this court.

In the Hayner case, the court had before it the opinion of the court of appeals in the other case, and was able to see the grounds of the decision; and they found them to cover all the questions in the case in this court.

In the case before us we have not been furnished with any opinion of the appellate court. Indeed, it is stated that no opinion was filed or written. Hor are we apprised of the ground or grounds upon which, that court has placed its decision. It may have been upon a purely technical ground, not disturbing the general law of the case, as determined by this court, and not affecting the real merits of the controversy, or it may even have been a reversal by the default of the party.

We have merely the fact, that one of three cases, involving the same facts, and of course dependent upon the same law, has been reversed by the court of appeals. But we are not bound to assume that the mere reversal of a judgment of this court necessarily reverses all the law of another case, as announced in the opinion of this court. It is doubtless the law of the case decided in the court of appeals; but so are the decisions in the other cases by this court the law of such cases, until they, or the principles involved in them and decided, are reversed in the same or some other case by the higher court.

What will occur upon a re-argument \ This court

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will be asked to reverse its former decision, for the mere reason that the appellate court had in one of the cases reversed the judgment of this court, and as the three cases are identical in facts and law, the two remaining •cases should suffer the fate of the one. But I think this court will require something more than a bare reversal of its judgments without the assignment of any reason therefor, to feel bound to recede from its own'views of the law. If reasons had been assigned by the higher court, and they showed that the law of this •court has been disturbed and reversed, we must and would regard the decision as authoritatively binding upon us. But if no reasons are given, this court would •have a perfect right to adhere to its own opinions of the law, and the mere reversal by the appellate court, would and could have no influence upon it.

In the re-trial of the case reversed, what guide will the trial judge have ? The grounds of the reversal are not known, and the supposed or conjectured errors of the former trial are not pointed out. I see no other .guide, then, than the decision of this court, where the law of the case remains.

It is something, perhaps, of a hardship that the law •of 1874, .disallowing appeals when the judgment is less than five hundred dollars, has prevented the defendant from obtaining a reversal of the two other judgments. But that law was enacted for a proper purpose, and its effect upon the defendant in those cases, is the common effect it was intended to have upon all similar cases. The defendant is no exception, and this court to which he applied-for permission to appeal, evidently thought he had no substantial grounds therefor.

But we think the spirit and intent of the stipulation was, substantially, that the untried actions should abide the event of the one which was tried, and that the court, so far as it can properly do so, should, assist

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the defendants in those actions in obtaining the benefit of the decision of the higher court, in the case which has been there decided.

We think, therefore, that they should be permitted to re argue their respective appeals, and if upon such re-argument they can satisfy the court, either by furnishing the reasons for. the court of appeals decision, or in any other manner, that its former decision has been reversed, or was incorrect, they will get the benefit, which we think, under their stipulation, they are fairly entitled to.

This will leave the question where it should be, with the court upon a re-argument of the appeals, when possibly more light may be furnished, than is given us on this motion.

Motions granted, but without costs.

Sedgwick, J., concurred.