Caldwell v. New York & H. R.

82 N.Y.S. 1096

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1903
• Status: Published

Opinion

PER CURIAM.

We are of the opinion that the judgments in all these cases must be reversed," but that the complaints should not be dismissed in any of them, but a new trial ordered. In regard to those cases which it is sought- to distinguish from the cases disposed of by the Court of Appeals, because they relate to damages arising from the construction of a 'Station, even if such plaintiffs might be entitled to some damages, they are so intermingled with the other damages that this court cannot separate the same. The suggestion was made upon the argument of some of these cases that counsel for the plaintiffs were anxious to present a constitutional question which had not been considered by the Court of Appeals, and they desire that in whatever judgment was made by this court it should appear that such constitutional question was raised upon this appeal. In order to remove any question as to whether, such question not having been raised in the court below, it could be raised on appeal, we are of opinion that the better practice requires that there should be a reversal, and a new trial ordered of those cases, instead of a dismissal of the complaint, so that upon the new trial the question may be properly raised, relieved from any objection which might be made to the fact of its only having been raised upon appeal. The judgments in all these cases should therefore be reversed, and new' trials ordered, with costs to the appellants to abide the event.