Opinion
January, 1921.
The order entered upon our decision herein ( 181 App. Div. 371) simply reversed the judgment and order appealed from and granted a new trial. After motion made in the Court of Appeals, and by permission of that court ( 229 N.Y. 603), the defendant moves that we amend the order and judgment to specify the particular question of fact upon which our reversal is based. Our opinion states that we found error in the charge to the jury. Inasmuch as the "error" was not the subject of objection, exception or request, the Court of Appeals decided that the erroneous ruling constituted a "question of fact," in that the question presented is whether the party has had a fair trial. ( McKellar v. American Synthetic Dyes, Inc., 229 N.Y. 106.) We amend our judgment and order so that said judgment and order state that this court in the exercise of its discretion determines and adjudges that the defendant did not have a fair trial, and, therefore, the judgment and order should be reversed and a new trial should be granted, with costs to abide the event, and that such reversal is based upon the question of fact that the court erred in charge and instruction to the jury as to the meaning of the contract of employment and as to what was to be found by the jury in order to entitle the plaintiff to a verdict upon said contract. Mills, Rich, Putnam and Blackmar, JJ., concur. Motion to resettle order granted nunc pro tunc as of November 5, 1920.