#### Mary Ann McEteere, Appellant, *against*William McCarthy Little, as Executor, &c., of Augusta M. Little, Respondent.

Decided December 2d, 1878.)

Upon an appeal to this court from an order of the general term of the Marine Court of the city of New York granting a new trial, on the ground that the verdict was against the weight of evidence, this court will refuse to weigh the evidence again; and will either dismiss the appeal or render judgment absolute against the appellant, unless the uncontradicted evidence shows that he is entitled to a judgment in his favor.

In a .case where the return showed that there were errors on the trial for which the general term of the Marine Court might properly have reversed the judgment and ordered a new trial, and it also appeared that such general term might have reversed the judgment and ordered a new trial for errors of fact and not for errors of law, the general term of this court, instead of ordering judgment absolute against the appellant, dismissed the appeal and remitted the appellant to a new • trial

*168Where, to a complaint for wages, the answer is a general denial, and the evidence on the part of plaintiff and defendant is conflicting as to the rate, of wages, it is error for the court to instruct the jury that the burden of proof is upon defendant and that a debt is admitted.

Appeal from an order of the general term of the Marine Court of the city of New York, reversing a judgment entered upon a verdict for plaintiff rendered at a trial of the action and granting a new trial. The defendant, Augusta M. Little, died pending the appeal, and the action was revived against her executor.

*George F.*Langbein, for appellant.

*Charles A.*Jackson, for respondent.

Van Hoesen, J.

This is an action for wages and for money lent. The defendant pleaded, (1st) a general denial; (2d) a former adjudication in her favor in a suit on the same demands brought against her by the plaintiff in France; and (3d) full settlement and payment in Rome.

The defendant’s counsel took various exceptions during the trial, and after the verdict, which was in favor of the plaintiff, made a motion for a new trial on the minutes, on the ground that the verdict was against the weight of evidence, and on the further ground that there was not sufficient evidence to support the verdict. The court at trial term denied the motion for a new trial, and the defendant excepted, and then appealed to the general term of the Marine Court from the judgment, and also from the order denying the motion for a new trial. The case was before the Marine Court general term in such a form that the . exceptions and the evidence all passed under the review of that tribunal, which reversed the judgment and ordered a new trial, with costs to abide the event. From the order of the general term the plaintiff appealed to this court.

The counsel for the appellant insisted upon the argument that the general term reversed the judgment on the ground that the verdict was against the evidence. That proposition *169involved consequences fatal to the appeal. The changes that have within the past few years been made in the, laws respecting the Marine Court have altered the rules' which formerly governed appeals from that court to the Common Pleas. The Marine‘Court may grant new trials, and an appeal may be taken to the Court of Common Pleas when that power is exercised. (Secs. 9, 10 and 11, ch. 629, Laws of 1872; sec. 9, ch. 545, Laws of 1874 ; sec. 43, ch. 479, Laws of 1875.) The language of the acts of 1874 and 1875 is certainly broad enough to embrace an appeal from an order granting a new trial on the ground that the verdict of the jury was against evidence, but such, I think, was not the intention of the Legislature. The language of the acts above cited is similar to, if not identical with, the language of sec. 11, Code of Procedure. That section authorized appeals to the Court of Appeals from orders granting new trials, but until sections 268 arid 272 were amended so as to provide for a review of the findings of fact made by a single judge or by a referee, there was no way in which the Court of Appeals could, on an appeal from an order granting a new trial, pass upon the evidence and the correctness of the findings. And to this very day, though the Code explicitly authorizes an appeal to the Court of Appeals from an order granting a new trial, there is no method known to the law by which that court can renew the action of the general term in setting aside a verdict as against the weight of evidence. Where only pure questions of law are involved, an appeal from an order granting a new trial will lie to the Court of Appeals; but where the general term sets aside a verdict as against evidence, the appeal will be dismissed or judgment absolute against the appellant will be pronounced by the Court of Appeals, unless the uncontradicted evidence indisputably shows the right of the appellant to a judgment in his favor. *(Wright*v. Hunter, 46 N. Y. 411 ; *Sands*v. *Crooke,*46 N. Y. 569 ; *Wagner*v. *L. I R. R.,*70 N. Y. 615.) There is a long line of decisions of the Court of Appeals holding that the mere jurisdiction to entertain an appeal from an order granting a new trial did not impose on that *170court the duty of weighing conflicting evidence. *(Hoyt*v. *Sheldon,*19 N. Y. 207 ; *Miller*v. *Schuyler,*20 N. Y. 522 ; *Young*v. *Davis,*30 N. Y. 134.)

I think the same effect must be given to the acts of 1874 and 1875 as was given to sec. 11 of the Code of Procedure, and that the Court of Common Pleas, which, with respect to' the Marine Court, is the court of last resort, cannot with propriety examine the testimony taken at the trial for the purpose of determining whether the general term or the jury was right in its weighing of the evidence. Whether, under the present state of the law, it is competent for this court to review the facts on an appeal from an order of the Marine Court granting a new trial, where the action has been tried before a single judge or a referee, it is not now. necessary to determine. If this court cannot review the order appealed from, and I think it clear that it- cannot, if, as the appellant contends, a new trial was granted on the ground that the verdict was against the weight of evidence, it becomes important to determine what disposition should be made of this case. It appears that the respondent took ex-, ceptions, which were properly included in the case. One, at least, of those exceptions seems to me to be good. The general denial pleaded by the defendant put the plaintiff to her proofs. There was a direct conflict between the plaintiff and the defendant as to the rate of wages to be paid, the plaintiff claiming twenty-five dollars per month, and the defendant insisting that sixteen dollars per month was the amount agreed upon. Under these circumstances,- the justice at the trial told the jury that the burden of proof was on the defendant, and that the plaintiff’s claim was admitted. To that instruction the defendant’s counsel excepted. That the instruction was wrong, and that it must have prejudiced the defendant’s case, is obvious. For that error of the judge at the trial, the general term may very properly have reversed the judgment and ordered a new trial. The exception to that instruction -having been well taken, I think absolute judgment should be rendered against the plaintiff. *(East River Bank*v. *Kennedy,*4 Keyes, *171279 ; *Sands*v. *Crooke,*46 N. Y. 569; *Cobb*v. 46 N. Y. 537-538.)

Charles P. Daly, Ch. J., concurred.

At the general term in January, 1879, a motion for a re-argument was made, and the following opinion was filed on Feb. 3d, 1879.

Van Brunt, J.

As the papers upon the appeal show that the general term of the Marine Court may have reversed the judgment of the trial term for error of fact and not for an error of law, no reargument of the appeal can possibly be necessary, as this court cannot consider the appeal upon its merits. As has been shown by the opinion of Mr. Justice Van Hoesen already delivered in this case, the statutes regulating appeals from the general term of the Marine Court to this court entirely assimulated the practice upon such appeals to that governing" appeals to the Court of Appeals. The practice in that court is distinctly laid down, that appeals must be dismissed where it appears by the return that questions of fact were legitimately before the general term, and that the evidence was such that the court may have reversed the judgment on the facts. This rule was laid down at the present general term of this court in the ease of *Fay*v. Hazeltine,, where the court dismissed the appeal upon the ground that the reversal of the judgment of the general term of the Marine Court may have been upon questions of fact, which conclusion was arrived at with great reluctance, as such dismissal worked a great hardship upon the plaintiff, and the court thought that there was a fair conflict of testimony, upon which the verdict of a jury should have been final. I do not think in the case at bar, however, that the judgment should have been affirmed, but that the appeal should have been dismissed and the plaintiff remitted to his new trial.

The order of the general term should be modified accordingly.

*172Charles P. Daly, Ch. J., and Larremore, J., concurred.

Appeal dismissed.