Opinion
Argued June 18, 1897
Decided October 12, 1897
John Jeroloman for appellant.
J. Langdon Ward for respondents.
This action was brought to recover damages for personal injuries received by the plaintiff through the alleged negligence of the defendants.
The plaintiff resided with his parents at No. 341 East Thirteenth street in the city of New York. The premises were owned by the defendants and rented as a tenement house, the plaintiff's father occupying one of the apartments. There were front and rear yards inclosed by fences. In the front yard there was a cellarway covered by two doors, which, when closed, were nearly flat and rested on stone walls. In one of the doors two boards had been broken out at the edge and within eighteen inches of the foot, leaving a hole about nine by twelve inches in size. This hole had existed from six weeks to two months, and the attention of the janitor employed by the defendants had been called thereto. In the rear yard there was an area about three feet by four feet in size and six feet deep, in front of a window opening into the cellar. The area had been covered by an iron grating resting upon a stone wall surrounding the area, but it had become so worn that the grating often became displaced. It had fallen into the areaway, which had remained open for about two months. The defendants' collecting agent's attention had been called thereto, and he had been requested to have the grating repaired so that it would stay in place. Both the front and the rear yards had been used by the children of the tenants as play grounds.
On the first day of July, 1891, the plaintiff, then an infant two years and three months of age, was in an adjoining yard. He was seen to crawl through the fence or railing between the yards at a point where some of the rails were out, and enter the yard in front of his residence. The cellar door with the broken boards was closed; the other one was open. After entering the yard he stepped upon the cellar door, walked diagonally across it, stepped into the hole broken through the door, fell through the open doorway into the cellar and fractured a bone in his wrist. He was unattended at the time of the accident. On the 4th day of November thereafter he was at play in the rear yard in company with a sister a year and a half older. She tossed a ball over his head, and he, in going back for it, fell into the area, receiving injuries which it is claimed have crippled him for life. The father was away from home, and the mother was engaged with her work in the house at a place where she could see her children in the yard through a window. The jury awarded the plaintiff as damages for the first injury one hundred dollars; for the second, seven thousand six hundred dollars. A motion for a new trial was made upon various grounds, among which was the claim that the verdict was against the weight of evidence and that it was excessive.
The General Term, in reversing the judgment, has not stated in its order whether the reversal was based upon the law or the facts; and had it followed the usual practice of ordering a new trial, no question would have been presented by this appeal for our review. ( Wright v. Hunter, 46 N.Y. 409; Chapman v. Comstock, 134 N.Y. 509; Mickee v. W.A. Wood M. R.M. Co., 144 N.Y. 613; Hoes v. Edison General Electric Company, 150 N.Y. 87.)
Questions arising with reference to verdicts which are claimed to be excessive, or against the weight of evidence, are final in the General Term, and cannot be reviewed by this court. The General Terms were invested with broad powers with reference to the granting of new trials, even extending to cases in which they were satisfied that the verdict was against the weight of evidence, or was unjust. ( Roberts v. Tobias, 120 N.Y. 1; Hamilton v. Third Avenue R.R. Co., 53 N.Y. 25-27.)
We are not, however, satisfied with the action of the General Term in ordering final judgment upon the merits, even if the evidence was not sufficient to justify the submission of the case to the jury, a question which we do not now decide. We are unable to say that other evidence may not be in existence which may materially change the facts with reference to these transactions. We, therefore, think that a new trial should have been ordered.
The judgment should be modified so as to order a new trial, and as so modified affirmed, with costs to abide the event.
All concur, except GRAY, J., absent.
Judgment modified.