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App. Div.)

SECOND DEPARTMENT, JULY TERM, 1903.

Louis H. GEIn, Appellant, v. WILLIAM MCCARTY LITTLE, Respond

ent, Impleaded with John D. FARRINGTON, Defendant.

Short decision under Code of Civil Procedure, section 1022 when the grounds thereof

are not sufficiently stated - the judge who made it being no longer on the bench, a new trial will be ordered,

An action to recover upon an undertaking given to perfect an appeal to the

Court of Appeals, in which several issues had been raised by the pleadings, was tried before a judge without a jury. The trial judge filed what purported to be a decision in the short form permitted by section 1022 of the Code of Civil Procedure, stating, “The court decides that the plaintiff has failed to establish a cause of action and that the complaict herein and this action should be dismissed upon the merits as against the defendant William McCarty Little, with costs.

“The court states the grounds of this decision to be that the plaintiff has failed to establish a cause of action and that he is not entitled to the relief

demanded in the complaint." Held, that the decision was inadequate to s' cmt the judgment dismissing the

complaint, as it did not state, as required by section 1022 of the Code of Civil

Procedure, the ground upon which the complaint was dismissed; That, as the judge who presided at the trial of the case was no longer on the

bench, a new trial was necessary.

APPEAL by the plaintiff, Louis H. Gein, from a judgment of the Supreme Court in favor of the defendant, William McCarty Little, entered in the office of the clerk of the county of New York on the 1st day of November, 1897, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits.

This appeal was transferred from the first department to the second departinent.

Hector M. Hitchings, for the appellant.

Chauncey S. Truax, for the respondent.

HIRSCHBERG, J.:

This action was tried before a justice of the Supreme Court in the city and county of New York, and a decision was filed on or about October 27, 1897, not stating separately the facts found and

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. the conclusions of law, but purporting to decide the whole issues in the short form permitted by section 1022 of the Code of Civil Procedure as then in force. (See Laws of 1895, chap. 946.) By that section a decision so filed is required to state “concisely the grounds upon which the issues have been decided.” The issues in the action are complex. The suit is brought to recover à money judgment upon the undertaking given to perfect the appeal to the Court of Appeals by the plaintiff in the action of MacGowan v. Gein (13 N. Y. St. Repr. 421; affd. in the Court of Appeals, 122 N. Y. 643). The plaintiff claims to be the owner of the "cash notes" hereinafter referred to, and the defendants are the sureties upon the undertaking. The Special Terın judgment, affirined in both appellate courts, reformed a chattel mortgage given to secure certain promissory notes, and also reformed the notes by adjudging that they were “ payable as per contract for printing," with the exception of notes to the amount of $2,500, which were held to be “ cash notes.” The undertaking contained many erroneons recitals in relation to the action and the judgment; and instead of providing as its condition, in accordance with the provisions of section 1326 of the Code of Civil Procedure, in the case of security to perfect an appeal to the Court of Appeals, that the appellant would pay all costs and damages which may be awarded against him on the appeal, not exceeding $500, provided, as the condition, “ that the appellant will pay all damages which the defendant may sustain by reason of such appeal, and that if such judginent appealed from or any part thereof is affirmed, or the appeal be disniissed, he will pay the sum recovered or directed to be paid by him by the judgment upon trial at Special Term,

or the part thereof as to which it is affirmed, and, if affirmed or dismissed, that he will pay the notes held by the defendant, Helen Potter, to the extent to which, by the judgment entered on the 18th day of January, 1887, being the judgment entered upon the decision rendered at Special Term, they are declared to be "cash notes' not exceeding the sum of three thousand five hundred dollars."

On the trial of this action the appellant expressly limited his right to recover on the undertaking to the “ Potter cash notes." His ownership of these notes was placed in issue by the answer, and among other grounds of defense the respondent claimed upon the

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App. Div! SECOND DEPARTMENT, JULY TERM, 1903. trial that no liability was created by the undertaking as a statutory undertaking beyond that provided for by section 1326 of the Code (supra), while if the undertaking was sought to be enforced as a common-law obligation it was void for want of consideration in fact, and under the Statute of Frauds as being a promise to answer for the debt of another without consideration expressed in the document or otherwise in writing.

The decision of the learned trial court is as follows:

“The court decides that the plaintiff has failed to establish a cause of action and that the complaint herein and this action should be dismissed upon the merits as against the defendant William McCarty Little, with costs.

“The court states the grounds of this decision to be that the plaintiff has failed to establish a cause of action and that he is not entitled to the relief demanded in the complaint.”

We think this decision insufficient under the circumstances to support the judgment appealed from. It is as inadequate as a decision would have been in favor of the plaintiff which should adjudge that he was entitled to recover a specific sum, and which should allege as the grounds of such decision that he was entitled to recover such sum. We are not apprised upon what ground the plaintiff has failed to establish his cause of action, whether that the undertaking has been held bad as statutory or as an independent obligation, or both, or why it has been so held in either event, or whether the plaintiff's failure to establish his cause of action relates to the ownership of the notes or the existence of damages recoverable under the contract. To decide the case upon appeal upon the merits might well result in sustaining a judgment upon an entirely different ground from that upon which it has been recovered, a result which may be both unfair and unjust.

In Shaffer v. Martin (20 App. Div. 304) the decision was more precise and specific than the one at bar, yet the Appellate Division in the fourth department held it bad, saying (p. 307): “How could an appellate court intelligently review the general verdict of a jury unless the issues of fact, upon which the jury passed, were stated by the justice presiding at the trial, and it is no more feasible to review a case decided by a decision in the form of the one in the case at bar than it would be to review a judgment entered on the

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

general verdict of a jury, without any directions on the part of the justice presiding at the trial.”

As was said by this court in Newman v. Mayer (52 App. Div. 209), the alleged decision is simply a direction for judgment. It directs judgment for the defendant because the plaintiff is not entitled to recover on the ground that he has not made out his cause of action. No reasons are given as required by the provisions of the section of the Code now under consideration. “They manifest the purpose of the Legislature,” said Mr. Justice Willard BartLETT in the case last cited, “ that the parties to a law suit which is tried by a referee or a judge without a jury shall be informed to some extent at least of the reasons which have led to the determination reached. The obligation to give these reasons either in the forın of findings of fact and conclusions of law, or in a concise statement of the grounds upon which the issues have been decided, is conducive to a degree of care in the consideration and disposition of the cause which might not otherwise always be observed; and carelessness might soon come to be the rule instead of the exception in the determination of equity cases, if all that the judge had to do at the end of the trial was to direct the judgment to be entered without disclosing why.”

As the learned justice who tried the case is no longer on the bench, and the case cannot, therefore, be remitted for decision, a retrial will be necessary. (Reynolds v. Ætna Life Ins. Co., 6 App. Div. 254, 264.)

The judgment should be reversed and a new trial granted. GOODRICH, P.J., BARTLETT, WOODWARD and JENKS, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

GEORGE KURZ, Respondent, v. Anton DOERR, Appellant. Action for damages for an assault with a loaded firearm - the distinction, in the

burden of proof borne by the plaintiff, in a civil action involving the commission of a crime and in a criminal action.

Upon the trial of an action to recover damages for an assault committed with a

loaded firearm, the court charged the jury that the burden was upon the plaintiff to prove his cause of action by a preponderance of evidence. Whereupon the defendant's counsel requested him to further charge "that the defendant is presumed innocent until he is proven guilty," which request the court

denied. Held, that, if the defendant's request was designed to obtain a ruling that the

requirements of the criminal law relative to the degree of proof necessary to sustain a conviction was applicable to the case at bar because the plaintiff's right to recover incidentally involved the commission of a crime by the defend.

ant, the request was properly refused, as such a ruling would be improper; That, if the request was designed to obtain a ruling that the presumption of

innocence attaches in all cases, both civil and criminal, to conduct equally sus. ceptible of an innocent and of a guilty construction, which ruling would have

been proper, the defendant should have made his meaning clearer. Semble, that the difference in the burden of proof borne by the plaintiff in a civil

action and by the prosecution in a criminal proceeding is the distinction between preponderating proof and such proof as excludes every reasonable doubt.

APPEAL by the defendant, Anton Doerr, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of June, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 15th day of July, 1902, denying the defendant's motion for a new trial made upon the minutes.

Leander B. Faber, for the appellant.

Burt Jay Humphrey, for the respondent.

HIRSCHBERG, J.:

This appeal presents but one question for consideration. The action is brought to recover damages for an assault committed with a loaded firearm. The court having charged the jury that the burden was upon the plaintiff to prove his cause of action by a preponderance of the evidence was asked by the defendant's counsel to charge further “ that the defendant is presumed innocent until he

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