Ludviska H. Larsen, as Administratrix, etc., of Rognald John Larsen, Deceased, Appellant, v. The United States Mortgage and Trust Company, Respondent

Ludviska H. Larsen, as Administratrix, etc., of Rognald John Larsen, Deceased, Appellant, v. The United States Mortgage and Trust Company, Respondent. Second Department, June 8, 1906. Trial — when a former order setting aside a verdict for the plaintiff was affirmed only on condition that defendant pay costs the trial court should not nonsuit on same evidence at second trial. Although the Appellate Division affirms the orderof the trial court made in an action for negligence, setting aside a verdict for the plaintiS as against the weight of evidence, and granting a new trial, when such affirmance was made on the condition that the defendant pay the costs of trial or judgment be entered-on the verdict, it is tantamount to a decision that the verdict was warranted by the evidence and it is error for the trial court to nonsuit on the same evidence at the second trial. Appeal by the plaintiff, Ludviska H. Larsen, as administratrix, etc., of Rognald John Larsen, deceased, from a judgment of the Supreme "Court in favor, of tlie defendant, entered in the office of the clerk of the county of Kings on the 10th day of November, 190,5, upon the dismissal of the complaint by direction of the court i after a trial at tlie Kings County Trial Term. Leo G. Rosenblatt, for the appellant. -George Gordon Battle [Frederick F., Fishel with him on the brief], for the respondent. '' • [MAJORITY — Hooker, J.:] Hooker, J.: • Tlie plaintiff has sued • to recover damages for the death of her deceased husband, as the.administratrix of his estate, on the ground that the death was caused by defendant’s negligent, operation of an engine upon a tramway. Upon the' first trial the plaintiff had a ver- • 'diet, which was set aside b.y the trial court upon the grounds that “/the verdict was-against the evidence and the weight of the evidence,and that the defendant herein is sued as an individual, and the plaintiff failed to prove any act of negligence on the part of the defendant as an individual.” An appeal from the order granting a new. trial" came to this-cohrt. .That order was "affirmed. (See 104 App. Div. 76.) The new trial, however,.had been granted without the. condition 'that the defendant pay costs, and this- court modified the order so as to make the affirmance conditional (upon the payment by"the defendant of the costs, of the trial. The order of this court also provided that on failure to comply with such conditions, the order appealed from be reversed and judgment unanimously directed oil the verdict. On the second trial, now tinder review, the evidence introduced on behalf of the plaintiff Was" substantially the same- as - that which was received' Upon the first trial, but the learned Trial Term granted the motion for a nonsuit, at the close of the plaintiff’s case, stating “This case has been tried before and been on appeal to the Appellate Division.. The Appellate Division has applied to it the strict rule applicable to.steam railroads, in the open, in respect to a person looking each way before, stepping onto-the track, and I am bontid by that- decision of the - Appellate Division, and I dismiss the case.” The effect of the former decision of this court has been, misjudged. Thefhew triál-, was grapted on the two questions that -the verdict was against the weight of -evidence, and "that the defendant' was not liable as an individual. This court specifically discussed the second ground, and came to the conclusion that the defendant was liable in its individual capacity; it discussed the first ground and anhonnced that the order should be affirmed, “ but only oh the grounds that the verdict was'against the evidence and the weight of the evidence.” The direction in the order that upon the failure of the defendant to pay the costs of the trial the order be reversed and the judgment unanimously directed on the verdict, is tantamount to holding that in that record appeared proof of defendant’s negligence and of the intestate’s freedom from contributory negligence, sufficient to support the jury’s verdict. The same evidence was" received in the trial now under review. It is not orderly to discuss the.question of defendant’s liability or the intestate’s freedom from contributory negligence as original propositions, for the reason that upon practically the same facts the court has already made determination of those questions, which should have been presented for the jury’s determination. The judgment must, therefore, be reversed and a new trial granted. Hirschberg, P. J., Woodward and Miller, JJ., concurred; Jenks, J., dissented. Judgment' reversed and new trial granted, costs to abide the event.