Burling v. Gunther

[After stating the facts as above.]—The questions of fact affecting employment and service seem to *342have been settled by the jury in favor of the plaintiff upon conflicting evidence, and the verdict is not against its weight. In such case it is without the province of this court to interfere with the action of the tribunal to which parties are remitted by law, for the settlement of those contentions.

The general term of the Marine Court, however, exceeded its authority by directing an afflrmance, should the plaintiff stipulate to reduce the recovery to one hundred and seventy-five dollars. The statute limits the plaintiff’s right to that amount, but the jury had power to award him less (2 R. S. 6th ed. p. 1005, § 1). The case was given to them under an absolute instruction to allow him four hundred dollars, in case they found in his favor upon other questions. In my opinion, the general term of the Marine Court by its action has usurped the functions of a jury in fixing absolutely the quantum of plaintiff’s recovery at the statutory limit. No adjudication in the books upholds so broad a construction of the powers given an appellate court, to reverse, affirm or modify a judgment. In Sears v. Conover (3 Keyes, 113), the action was to recover damages for a breach of contract to sell and deliver potatoes at a certain price. The jury gave a verdict for five hundred dollars, which was reduced by the general term to three hundred dollars, and so affirmed by the Court of Appeals. There is nothing in the report of the case, to show what evidence was given upon the subject of damages, or indicating of what items the original sum consisted. The learned judge who wrote the opinion held the court possessed of power on a motion for a new trial to refuse to set aside the verdict, if the parties would consent to deduct-any amount deemed excessive. The case may have been one, where the elements of damage established by the proofs, were such as to enable the court to reach a conclusion upon the sum to which the plaintiff had shown a clear or absolute right. In Cook v. Phillips (56 N. Y. 310), the judgment on the percentage agreed upon was wholly reversed by the general term, and the Court of Appeals held the limit of the statute applicable, and affirmed the reversal giving judgment absolute against plaintiff by virtue of his stipulation. The opinion *343stated that the plaintiff was entitled to no more than fifty dollars upon a loan of ten thousand, and “if he could have recovered that sum,” it was waived by the stipulation. Nothing in the case supports the action here. In Moffet v. Sackett (18 N. Y. 522), the general term reduced a judgment for goods sold and work done, by deducting $12 damages caused by unskillful work. The referee had refused its allowance, but found it to have been from $12 to $15. The court held there was no authority to determine the amount of unsettled damages, and where the amount was indefinite and uncertain, so doing was an assumption of the jury’s province. In other cases either this principle is stated, or the facts show the reduction to have been made of amounts settled in the trial court, and in one, where interest was mistakenly computed (Brownell v. Winnie, 29 N. Y. 400; Hayden v. Florence Sewing Machine Co., 54 N. Y. 221; Cuff v. Dorland, 57 N. Y. 560 ; Whitehead v. Kennedy, 69 N. Y. 462).

In the case at bar, neither the plaintiff’s right, nor the defendant’s liability, with reference to amount, has ever been passed upon by the tribunal wherein such issues are settled. It appears the jury were misled by an erroneous instruction, and the general term of the Marine Court endeavored, instead of ordering a new trial, to adjudicate what the plaintiff was entitled to. This was beyond their power, the needed facts not having been found on the trial.

The judgment should be reversed, and a new trial ordered with costs to abide event.

Yak Bbukt, P. J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.