Margaret Boyle, as Administratrix, etc., Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent

Margaret Boyle, as Administratrix, etc., Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent. (Argued May 1, 1889; decided June 4, 1889.) Appeal from judgment of the General Term of the Supreme 'Court in the fifth judicial department, entered upon an order made the first Tuesday of January, 1886, which reversed a judgment in favor of plaintiff, entered upon a verdict, and an order denying a motion for a new trial. This action was brought to recover the value of three horses alleged to have been negligently killed by a passing engine on defendant’s road. The order of reversal stated that it was. granted solely upon ■questions of fact. The court here say: “ This appeal clearly brings nothing here for review, and the practice has.been so long settled that, instead of dismissing the appeal for reasons stated in Jameson v. Brooklyn Skating Rink, Association (5'4 N. Y. 673); Snebley v. Conner (78 id. 218), and JPennicutt v. Pan/malee (109 id. 650), the order should be affirmed. “We come to the conclusion to affirm the order instead of dismissing the appeal, the more readily as we are satisfied that there was no error of law upon the trial, and that upon the facts as they appear in this record, and undoubtedly exist, there could be no recovery upon a new trial. There was no evidence that plaintiff’s horses were killed by the reckless, wanton or malicious conduct of defendant’s engineer, and hence there was no basis for a recovery. (7 Am. and Eng. Ency. of Law,-606, 916, 918, and cases cited.) “ The order should be affirmed and judgment absolute ordered against the plaintiff, with costs.” Ansley & Davie for appellant. George F. Brownell for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance of order and judgment absolute ordered against the plaintiff on the stipulation. All concur. Judgment affirmed.