Bohlen v. Metropolitan Elevated Railway Co.

The general term of this court recently held in Pappenheim v. The metropolitan Railway Company and another, 28 N. Y. State Rep., 577, that findings of fact such as appear in the decision of this case are in irreconcilable conflict. Adopting' this as a proper conclusion, it seems that it is impossible from the' record before us to say which of the conflicting findings is correct.

The error sought to be remedied by the order appealed from is therefore-judicial and cannot be corrected after judgment upon a motion made at a term other than that at which the judgment was rendered. Rockwell v. Carpenter, 25 Hun, 529; McLean v. Stewart, *27914 id., 472; Gardiner v. Schwab, 34 id., 583; Freeman on Judgments, § 70, 101.

The order should be reversed.

Sedgwick, Ch. J., concurs.