Henly v. Delaware, Lackawanna & Western Railroad

27 Misc. 811, 57 N.Y.S. 396

• Court: City of New York Municipal Court
• Decided: March 15, 1899
• Status: Published

Opinion

Hascall, J.

This appeal brings up two principal questions for review, viz.: Whether the verdict is against the weight of evidence, and whether error was committed at the trial in refuéingto dismiss the complaint.

We find, upon a careful reading of the case, that the defendant, has good grounds for feeling aggrieved and for appeal to this court..

It was for the trial court alone to construe the contract between the parties and to instruct the jury as to its meaning. 103 FT. Y. 341. The terms being undisputed and unambiguous, the question thereon was solely one of law (122 N. Y. 247; 143 N. Y. 649) and should not have been left to the jury.

It was error, upon the uncontradicted evidence, not to find that the acts, done by persons complained of by plaintiff, were not committed by the defendant, or its servants (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181), and so to instruct the jury, or to dismiss the complaint.

For these reasons the judgment and order appealed from must be reversed, and the verdict set aside, and a. new trial ordered, with costs to. the .appellant. ' .

Fitzsimons, Oh. J., and .McCarthy, J., concur.

Judgment and order reversed and new trial ordered, with costs to appellant.