Kellum v. . Durfoo

New York Court of Appeals

Kellum v. . Durfoo

78 N.Y. 484, 1879 N.Y. LEXIS 940

DecidedNovember 11, 1879

StatusPublished

This text of 78 N.Y. 484 (Kellum v. . Durfoo) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kellum v. . Durfoo, 78 N.Y. 484, 1879 N.Y. LEXIS 940 (N.Y. 1879).

Pincite

Opinion

Ber Curiam.

This is an appeal from an order of the General Term, reversing an order of the Special Term, direct *486 ing additional parties to be brought in as parties defendant. The cause was moved for trial at the Circuit, and by direction of the presiding justice, placed on the Special Term calendar, who made the order appealed from. The General Term reversed the order of the Special Term, and ordered the cause to be placed on the Circuit calendar for trial.

The question involved relates to a matter of practice only, in the disposition by the court of causes on its own calendar. The court on motion, or of its own volition may direct questions of fact to be tried at Circuit. If any substantial right of the parties is violated, in the final disposition of the issues tried, whether as to the mode of trial or otherwise, such question may be raised on the trial, and exception taken.

The question whether the action can be maintained by one of the owners, and a recovery had for his share of the damages, is one which may be raised upon the trial, and an exception taken, to be heard upon appeal from the judgment. We think that is the appropriate way of reviewing the question, rather than upon this preliminary motion, where at most it is only incidentally involved. ' The position of the counsel for the defendant as to the distinction between the relation of the parties to the property, and their relation to the business carried on, is recognized by the authorities, and the contention that such distinction will prevent a part owner from a recovery against a tort feasor, for an injury or destruction of the profits of a particular voyage, may be well founded, although no direct authority has been cited to establish it. We deem it premature to adjudicate the point until the real facts are developed upon the trial, and the question is presented directly.

The appeal should be dismissed.

All concur.

Appeal dismissed.

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Ber Curiam.

This is an appeal from an order of the General Term, reversing an order of the Special Term, direct *486 ing additional parties to be brought in as parties defendant. The cause was moved for trial at the Circuit, and by direction of the presiding justice, placed on the Special Term calendar, who made the order appealed from. The General Term reversed the order of the Special Term, and ordered the cause to be placed on the Circuit calendar for trial.

The question involved relates to a matter of practice only, in the disposition by the court of causes on its own calendar. The court on motion, or of its own volition may direct questions of fact to be tried at Circuit. If any substantial right of the parties is violated, in the final disposition of the issues tried, whether as to the mode of trial or otherwise, such question may be raised on the trial, and exception taken.

The question whether the action can be maintained by one of the owners, and a recovery had for his share of the damages, is one which may be raised upon the trial, and an exception taken, to be heard upon appeal from the judgment. We think that is the appropriate way of reviewing the question, rather than upon this preliminary motion, where at most it is only incidentally involved. ' The position of the counsel for the defendant as to the distinction between the relation of the parties to the property, and their relation to the business carried on, is recognized by the authorities, and the contention that such distinction will prevent a part owner from a recovery against a tort feasor, for an injury or destruction of the profits of a particular voyage, may be well founded, although no direct authority has been cited to establish it. We deem it premature to adjudicate the point until the real facts are developed upon the trial, and the question is presented directly.

The appeal should be dismissed.

All concur.

Appeal dismissed.

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Bluebook (online)

78 N.Y. 484, 1879 N.Y. LEXIS 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellum-v-durfoo-ny-1879.