Bohlen v. Metropolitan Elevated Railway Co.

9 N.Y.S. 424, 1890 N.Y. Misc. LEXIS 199

Opinion

Dugro, J.

The general term of this court recently held in Pappenheim v. Railway Co., 7 N. Y. Supp. 679, 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, 14 Hun, 472; Gardiner v. Schwab, 34 Hun, 583; Freem. Judgm. §§ 70, 101. The order should be reversed.