JOHN REDINGTON, as Administrator of MICHAEL E. REDINGTON, Deceased, Respondent, v. THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Appellant.
Redington v. N. Y., O. & W. R. Co., 84 Hun, 231, affirmed. (Argued March 26, 1897; decided April 20, 1897.)
APPEAL from a judgment of the General Term of the Supreme Court in the third judicial department, entered March 12, 1895, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
Lewis E. Carr and George II. Carpenter for appellant.
T. F. Bush for respondent.
Judgment affirmed, with costs; no opinion.
See EXECUTORS AND ADMINISTRA-
TORS, 3-12.
SURROGATES, 2, 3.
TRUSTS, 7.
be reversed as it is in violation of section 8, article 6 of the Constitution of 1846, prohibiting a judge or justice from sitting at a General Term of any court in review of a decision made by him." Id.
6. Transfer Tax Appeal to Surrogate from Appraisal — New Allegations. On appeal to a surrogate from the confirmation of an appraiser's report as to an estate for the purpose of a transfer tax and from an assessment of the tax in conformity therewith taken under section 13 of the act of 1892, appellants should be permitted to file additional allegations that since the appraisal, litigation has been commenced to determine who are the heirs and next of kin of the decedent, thus creating a controversy which affects the title to the whole estate, although the sixty days allowed for an appeal have expired and the grounds specified in the notice of appeal do not include the matter of these allegations, when it appears that the litigation was not commenced until after the expiration of the time allowed for an appeal; and the surrogate should either postpone the appraisement until the litigation is determined, or at least receive and consider the proofs of the allegations. In re Westurn.
7. Judgment of Reversal by General Term. A judgment of reversal by the General Term holding that a finding of negligence by a referee or court, without a jury, is not justified by the evidence, will not be interfered with by the Court of Appeals, when it can fairly be said that the finding was against the weight of evidence, or that the proof so clearly preponderates in favor of a contrary result that it can be said with reasonable certainty that the conclusions of the trial court were erroneous. Bloom v. Nat. U. B. S. & L. Co. 114
9. Appeal from Commitment of Chil-
dren-Code Crim. Pro. § 749-
Return of Eridence. Where, on
an appeal, under the provisions
of section 749 of the Code of
Criminal Procedure, from a com-
mitment of children pursuant to
the provisions of section 291 of
the Penal Code, the affidavit upon
which the appeal is allowed does
not allege any errors with refer-
ence to a determination of the
facts, the evidence is not required
to be returned, and the failure of
the magistrate to preserve it fur-
nishes no ground for a reversal
of the commitment. People v.
Giles.
10. Review of Judgment of Reversal.
A judgment of the General Term
reversing a judgment of the Trial
Term entered upon the report of
a referee will be affirmed when
the preponderance of evidence
against the decision of the referee
is so great as to justify the re-
versal, because it can be said,
with a reasonable degree of cer-
tainty, that the decision was
erroneous. Foster v. Bookwalter.
11. Submission to Jury Waired by
Requesting Direction of Verdict.
An appellant's contention that
certain elements of the case should
have been submitted to the jury
is unavailing when he failed to
request their submission, but each
party moved for the direction of
a verdict in his favor. Clason v.
Baldwin.
204
12. Presumption on Appeal, as to
Proof of Material Fact. It will be
presumed on appeal from a judg-
ment entered in ejectment upon
a verdict directed for plaintiff that
the fact of the death of plaintiff's
mother, who was born ninety-two
years before, was expressly or
tacitly admitted at the trial or was
in some way established, if the
fact was at all material, where
there have been three trials of
the case and as many appeals
with no specific objection or sug-
gestion on the part of the defend-
ant that such a defect existed in
the proof and where there is no
certificate attached to the case that
it contains all the evidence, espe-
cially when plaintiff's title to one-
third of the estate is established
independent of that fact. Id.
13. Excessive Award — Question Not
Raised at the Trial. An objection
that the sum awarded for damages
or mesne profits on direction of a
verdict is in excess of that de-
manded in the complaint, if not
made at the trial, cannot be raised
on appeal; but the court will deem
the complaint to be amended in
order to cover the amount awarded
when found upon proof substan-
tially without conflict or contra-
diction.
outside the pleadings, in the ab-
sence of some specific objection to
that course. Farmers' L. & T. Co.
v. H. R. R. Co.
251
17. Actions for Penalties- Failure
to Present Question of Law. When
two actions for penalties, based
upon an alleged violation of two
distinct ordinances, are tried to-
gether upon the same evidence,
and a general judgment is ren-
dered in each case, it is not the
province of the Court of Appeals,
in the absence of some specific
motion or request, or ruling which
presents the question of law, to
undertake to separate what is legal
from what is illegal. City of Buf
falo v. N. Y., L. E. & W. R. R.
Co.
276
18. Justice's Court Action. The
Court of Appeals will not reverse
the action of a justice of the peace,
any more than it will the action of
any other court, except upon some
question of law distinctly pre-
sented in some form at the trial.
Id.
22. Affirmance as to Some Parties,
Reversal as to Others. Upon an
appeal from a judgment which is
entire and against several defend-
ants, the appellate court must
either totally affirm or reverse,
both as to the recovery and as to
all the parties; but in cases where
there are separate and distinct
judgments, or where an error ex-
ists as to a separate claim or de-
fense, which relates only to a trans-
action between the plaintiff and
one of the defendants, the judg
ment may be reversed as to such
a claim or defense, and only as to
the parties interested therein, and
affirmed as to the remainder. Alt-
man v. Hofeller.
498
19. Constitution, Art. 6, 9-Unani-
mous Decision of Appellate Divis
ion. It seems, that the provision
of the Constitution (Art. 6, § 9),
that no unanimous decision of 23.
the Appellate Division of the
Supreme Court, that there is evi-
dence supporting or tending to:
sustain a finding of fact,
shall be reviewed by the Court of
Appeals," applies to special pro-
ceedings as well as to actions, and
to implied findings as well as to
those written out in extenso.
ple ex rel. v. Barker.
20. Proceeding to Review Assessment.
The restriction imposed by the
Constitution upon the review of a
unanimous decision of the Appel-
late Division, that there is evi-
dence supporting a finding of fact,
applies to an order of affirmance in
a statutory proceeding to review
an assessment, in which a trial de
novo has been had at Special Term,
upon new evidence, as to the value
of the relator's property, resulting
in a confirmation of the assessment
and a dismissal of the writ of cer-
tiorari.
Id.
Unwarranted Partial Reversal
and Violation of Conclusiveness of
Settlement of Administrator's A
count. On appeal from a judg-
ment settling the accounts of ad
ministrators and of a general
guardian, in an action brought by
a surety on the administrators'
bond to be relieved from liability,
the General Term is not author-
ized to affirm the judgment as to
the accounting defendants and at
the same time reverse it as to
another defendant interested in
the accounting, and order that the
settlement of the administrators'
account shall be of no force as
against such defendant in the
further proceedings in the action.
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