
    McETEERE v. LITTLE.
    
      N. Y. Common Pleas ;
    
    
      General Term, November, 1878.
    Again, February, 1879.
    Appeal.—Marine Court.—Common Pleas.—Court oe Appeals.— Verdict.—Hew Trial.
    The statutes regulating appeals from the general term of the marine court to the court of common pleas, assimilate the practice upon such appeals to that governing appeals to the court of appeals.
    On an appeal from an order of the general term of the marine court granting a new trial, the court of common pleas, which, with respect to the marine court, is the court of last resort, cannot examine the testimony taken at the trial for the purpose of determining whether the general term or the jury was right in its weighing of the evidence.
    Appeals from the marine court to the court of common pleas must be dismissed, where it appears by the return that questions of fact were legitimately before the general term of the former, and that the evidence was such that the court may have reversed the judgment on the facts.
    I. General Term, November, 1879.
    Appeal by plaintiff from an order of the general term of the New York marine court, reversing a judgment entered upon the verdict of a jury.
    The action was brought by Mary Ann McEteere, against William McCarthy Little, as executor, &c., of Augusta M. Little, to recover for wages, and for money lent. The defendant pleaded, 1. A general denial; 2. A former adjudication in her favor in a suit on the same demands, brought against her by the plaintiff in France ; and, 3. Full settlement and payment in Borne.
    The defendant’s counsel took various exceptions during the trial; and, after the verdict, which was in favor of the plaintiff, made a motion for a new trial on the minutes, on the ground that the verdict was against the weight of evidence, and on the further ground that there was not sufficient evidence to support the verdict. The court, at trial term, denied the motion for a new trial; and the defendant excepted, and then appealed to the general term of the marine court from the judgment, and also from the order denying the motion for a new trial. The case was before the marine court at general term in such a form that the exceptions and the evidence all passed under the review; and that tribunal reversed the judgment, and ordered a new trial, with costs to abide the event.
    From that order of the general term the plaintiff appealed to the court of common pleas.
    
      George F. Langbein, for plaintiff, appellant.
    
      
      Richard M. Henry, for defendant, respondent.
   Van Hoesen, J.

[After stating the facts.]—The counsel for the appellant insisted upon the argument that the general term reversed the judgment on the ground that the verdict was against the evidence. That proposition involved consequences fatal to the appeal. The changes that have, within the past few years, been made in the laws respecting the marine court have altered the rules which formerly governed appeals from that court to the court of common pleas. The marine court may grant new trials; and an appeal may be taken to the court of common pleas, when that power is exercised (L. 1872, c. 629, §§ 9-11; L. 1874, c. 545, § 9 ; L. 1875, c. 479, § 43). The language of the acts of 1874 and 1875 is certainly broad enough to embrace an appeal from an order granting a new trial on the ground that the verdict of the jury was against evidence ; but such, I think, was not the intention of the legislature. The language of the acts above cited is similar to, if not identical with, the language of section 11, Code of Procedure. That section authorized appeals to the court of appeals from orders granting new trials, but until sections 268 and 272 were amended so as to provide for a review of the findings of fact made by a single judge, or by a referee, there was no way in which the court of appeals could, on an appeal from an order granting a new trial, pass upon the evidence and the correctness of the findings. And to this very day, though the Code explicitly authorizes an appeal to the court of appeals, from an order granting a new trial, there is no method known to the law by which that court can review the action of the general term in setting aside a verdict as against the weight of evidence. Where only pure questions of law are involved, an appeal from an order granting a new trial will lie to the court of appeals, but where the general term sets aside a verdict as against evidence, the appeal will be dismissed, or judgment absolute against the appellant will be pronounced, by the court of appeals, unless the uncontradicted evidence indisputably shows the right of the appellant to a judgment in his favor (Wright v. Hunter, 46 N. Y. 409 ; Sands v. Crooke, 46 Id. 69 ; Wagner v. H. R. R., 70 Id. 615). There is a long line of decisions of the court of appeals holding, that the mere jurisdiction to entertain an appeal from an order granting a new trial, did not impose on that court the duty of weighing conflicting evidence (see Hoyt v. Sheldon, 19 N. Y. 207; Miller v. Schuyler, 20 Id. 522; Young v. Davis, 30 Id. 134). .

I think the same effect must be given to the acts of 1874 and 1875 as was given to section 11 of the Code of Procedure; and that the court of common pleas, which, with respect to the marine court, is the court of last-resort, cannot, with propriety, examine the testimony taken at the trial for the purpose of determining whether the general term or the jury was right in its weighing of the evidence. Whether, under the present state of the law, it is competent for this court to review the facts on an appeal from an order of the marine court granting a new trial, where the action has been tried before a single judge or a referee, it is not now necessary to determine. If this court cannot review the order appealed from, and I think it clear that it cannot-, if, as the appellant contends, a new trial was granted on the grounds that the verdict was against the weight of evidence, it becomes important to determine what disposition should be made of this case. It appears that the respondent took exceptions, which were properly included in the case. One, at least, of those exceptions seems to me to be good. The general denial pleaded by the defendant put the plaintiff to her proofs. There was a direct conflict between the plaintiff and the defendant as to the rate of wages to be paid, the plaintiff claiming $25 per month, and the defendant insisting that $16 per month was the amount agreed upon. Under the circumstances the justice at the trial told the jury that the burden of proof was on the defendant, and that the plaintiff’s claim was admitted. To that instruction the defendant’s counsel excepted. That the instruction was wrong, and that it must have prejudiced the defendant’s case, is obvious. For that error of the judge at the trial, the general term may very properly have reversed the judgment, and ordered a new trial. The exception to that instruction having been well taken, I think absolute judgment should be rendered against the plaintiff (East River Bank v. Kennedy, 4 Keyes, 279 ; Sands v. Crooke, 46 N. Y. 279; Cobb v. Hatfield, Id. 537, 538).

II. General Term, February, 1879.

Motion by the plaintiff to modify the foregoing decision.

George F. Langbein, for the plaintiff and motion.

If the court of common pleas has no power to review the facts on an appeal from an order of the general term of the marine court, reversing a judgment on a verdict, and granting a new trial, it has none to render judgment absolute, but should have dismissed the appeal (Wright v. Hunter, 46 N. Y. 409 ; Sands v. Cooke, Id. 569 ; Wagner v. Hudson River R. R. Co., 70 Id. 615). The court had no right to render judgment absolute arbitrarily. Some facts in reason must exist in justice to cut off the plaintiff from her new trial. Any other construction of the marine court act (L. 1875, c. 479, § 43, subd. 2) is against all reason as applicable to an inferior court (Griffin v. Marquardt, 17 N. Y. 28). If the general term of the marine court reversed on the facts, then the general term of the court of common pleas has a general right to examine into the correctness and fairness of the decision (Beebe v. Mead, 33 N. Y 587; Peterson v. Rawson, 34 Id. 370 ; Smith v. Ætna Life Ins. Co., 49 Id. 211).

Order affirmed, and judgment absolute against the plaintiff.

Halt, Ch. J., concurred.

Richard M. Henry, for defendant, opposed:

Claimed that L. 1875, c. 479, § 43, subd. 2, gave the court of common pleas the power to render judgment absolute against the appellant. That she took the risk of appealing, instead of a new trial, and judgment absolute being rendered against her, she could not now complain.

Van Brunt, J.

As the papers upon the appeal show that the general, term of the marine court may-have reversed the judgment of the trial term for error of fact, and not from error of law, no re-argument of the appeal can possibly be necessary, as this court cannot consider the appeal upon its merits. As has been shown by the opinion of Mr. Justice Van Hoesen, already delivered in this case, the statutes regulating appeals from the general term of the marine court to this court, entirely assimilate the practice upon such appeals to that governing appeals to the court of appeals. The practice in that court is distinctly laid down, that appeals must be dismissed where it appeal’s by the return that questions of fact were legitimately before the general term, and that the evidence was such that the court may have reversed the judgment on the facts. This rule was laid down at the present general term of this court, in the case of Pay v. Hazel-tine, where the court dismissed the appeal upon the ground that the reversal of the judgment of the general term of the marine court may have been upon questions of fact, which conclusion was arrived at with great reluctance, as such dismissal worked a great hardship upon the plaintiffs, and the court thought that there was a fair conflict of testimony upon which the verdict of a jury should have been final. I do not think, in the case at bar, however, that the judgment should have been affirmed, but that the appeal should have been dismissed, and the plaintiff remitted to her new trial.

The order of the general term should be modified accordingly.

Daly, Oh. J., and Labbemobe, J., concurred.  