defendant entered upon a verdict directed by the court in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was a passenger on one of defendant's trains in the state of New Jersey. As the train approached the station at Rutherford its speed was reduced and one of the trainmen announced the station in the car in which the plaintiff was sitting. The plaintiff arose from his seat and walked toward the rear door and stepped outside upon the platform of the car, taking hold of the car rail with his right hand. He testified that he had a large bundle in his left hand and a small bundle under his right arm. As he was about to step down, and while the train was still moving, it gave a jerk, and the plaintiff fell down the steps of the car and received the injuries complained of. It was shown that a statute of New Jersey provided that a railroad would not be liable for injury to passengers who went upon the platform of cars in violation of posted regulations of the company. It also appeared that the defendant has posted notices forbidding passengers going on the platforms of cars while the train was in motion.

Sydney A. Syme for appellant.

William C. Cannon and Harold W. Bissell for respondent.

Judgment affirmed, with costs; no opinion.

Concur: HIS COCK, Ch. J., CHASE, HOGAN, POUND, MCLAUGHLIN and ANDREWS, JJ. Dissenting: CARDOZO, J.

PRISCILLA CHRZANOWSKA, Appellant, v. THE CORN EXCHANGE BANK, Respondent.

Chrzanowska v. Corn Exchange Bank, 173 App. Div. 285, affirmed. (Argued February 6, 1919; decided February 25, 1919.)

APPEAL, by permission, from a judgment entered December 29, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial depart

ment, which reversed a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of plaintiff and directed judgment in favor of defendant. Plaintiff deposited and had credited to her account in the defendant bank a check drawn to her order by another depositor of the bank. It transpiring that the drawer of the check was dead before the deposit was made the defendant refused to pay the amount to the plaintiff and this action was brought

to recover.

Alex B. Greenberg and Morris Leight for appellant.

Spotswood D. Bowers and John J. Halpin for respondent. Judgment affirmed, with costs; no opinion.

Concur: HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, POUND, MCLAUGHLIN and ANDREWS, JJ.

PETER JENSEN, Respondent, v. CAULDWELL WINGATE COMPANY, Appellant.

Jensen v. Cauldwell Wingate Co., 171 App. Div. 948, affirmed. (Argued February 7, 1919; decided February 25, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 2, 1916, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained through the negligence of defendant. The plaintiff was injured while working upon a building under construction by the defendant, a general contractor. He was employed by a subcontractor, the Atlantic Terra Cotta Company, as an expert fitter of terra cotta, it being his duty to assist and advise the employees of the defendant, who were engaged in setting the terra cotta furnished by the terra cotta company. He was injured by the fall of a plank upon which he attempted to walk from the second floor of the building under construction to a platform bridge erected over the sidewalk. It was alleged that the plank was furnished by

the defendant for the use of its employees and the plaintiff as a runway to pass to and fro from the bridge to the second floor of the building.

William Dike Reed, William B. Shelton and Leondias Dennis for appellant.

Thomas D. Thacher and Adrian L. Foley for respondent. Judgment affirmed, with costs; no opinion.

Concur: HISCOCK, Ch. J., CHASE, HOGAN, Cardozo, POUND and ANDREWS, JJ. Not sitting: McLaughlin, J.

MILTON L. FLEMING, Respondent, v. WILLIAM M. BARRETT, as President of the ADAMS EXPRESS COMPANY, Appellant.

Fleming v. Barrett, 176 App. Div. 892, affirmed.

(Argued February 7, 1919; decided February 25, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 22, 1917, affirming a judgment in favor of plaintiff entered upon a verdict. Plaintiff, as agent for the defendant express company, issued certain money orders for himself, payable to his bank, paid for the same and placed the money in an envelope for transmission to the company. When the train was coming in plaintiff took this envelope together with other matter and stepped on to the platform to deliver the same to defendant's messenger. He was there assaulted and robbed. The bank was instructed by defendant to return the money orders to plaintiff and thereafter one of its agents took possession thereof, without plaintiff's consent, and delivered them to defendant. This action is to recover for their conversion.

George W. Smyth and John J. Monahan for appellant. James E. Carroll for respondent.

Judgment affirmed, with costs; no opinion.

Concur: HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, MCLAUGHLIN and ANDREWSs, JJ. Not voting: CHASE, J.

INDEX.

ACCOUNTING.

See Gray v. Heinze (Mem.), 616; Matter of Farmers' Loan &
Trust Co. (Mem.), 666; Matter of Hoes (Mem.), 670; San
Lucas v. Bornn & Co.

ALIMONY.

See Tiedemann v. Tiedemann (Mem.), 709.

APPEAL.

717

1. Construction of Constitution must be necessarily involved to warrant
appeal for that reason, without permission to Court of Appeals, under
section 199 of Code of Civil Procedure. An appellant, who relies upon
the provision of the Code permitting as of right appeals where a
constitutional question is involved (Code Civ. Pro. § 190, as amd. by
L. 1917, ch. 203) as an authority for his appeal assumes the burden of
presenting a record which establishes that such construction has been
not only directly but necessarily involved in the decision of the case.
If the decision was or may have been based upon some other ground,
the appeal will not lie. Matter of Haydorn v. Carroll.
84

2. Where affirmance by Appellate Division was based on discretionary
power, appeal to Court of Appeals will be dismissed. Where, upon
examination of the opinion of the Appellate Division (Code Civ.
Pro. § 1237) upon an appeal, taken without permission from an order
of that court unanimously affirming an order of Special Term which
denied a mandamus to the clerk of the Special Sessions to permit the
petitioner's counsel to inspect an indictment, it appears that the
affirmance was based upon the exercise of a discretionary power, the
appeal will be dismissed without consideration of the merits. Id.

3. Order of Appellate Division reversing a judgment of conviction and
ordering a new tria! "for errors of law only cannot be reviewed in Court
of Appeals Order should show that decision was upon weight of
evidence. The Court of Appeals cannot review an order of the Appellate
Division reversing a judgment of conviction and ordering a new trial,
where it is stated that such reversal is 'for errors of law only." A
convicted defendant has the right to have the Appellate Division
review and render its decision upon the facts, but the statement that
the reversal is for errors of law only does not establish that the
Appellate Division has awarded him that right. In such case the
appeal should be dismissed, but without prejudice to a new application
to the Appellate Division for the amendment and resettlement of its
order by stating, in it, its decision upon the weight of evidence.
V. Redmond.

People

206

Writ

4. Habeas corpus
Constitutional law - Special proceedings
to inquire into the detention of one imprisoned, or held in custody, for a
crime, is a civil, not a criminal, process, a special proceeding to enforce a
civil right Order dismissing a writ not appealable as involving a
constitutional question. A writ of habeas corpus to inquire into the
detention of one confined in a prison under conviction and sentence
is a civil, not a criminal, proceeding, classified by the Code of Civil
Procedure as a state writ (§ 1991) and as a civil special proceeding
(§§ 3333-3337, 3343, subd. 20) to enforce a civil right, although
its purpose is to effect the release of the person from imprisonment or
custody under a criminal prosecution. Where an order of a County

APPEAL · Continued.

Court dismissing a writ of habeas corpus and remanding the relator
has been unanimously affirmed by an order of the Appellate Division
an appeal cannot be taken to the Court of Appeals unless the appeal
involves the construction of the Constitution of this state or of the
United States (Code Civ. Pro. § 190), and where the appellant avers
that he is held in imprisonment by virtue of a sentence and judgment
which the court had not the power to render and which is, therefore,
void, but the appeal involves only the determination of the meaning
and not the validity of the statutes conferring jurisdiction upon the
court, and does not present the constitutionality of the statutes in
question or the construction of the Constitution of the state, such
appeal must be dismissed. People ex rel. Curtis v. Kidney.
293

5. Reversal by Court of Appeals of order of Appellate Division reversing
on law leaves facts as found by jury unaffected. The Appellate Division
having reversed the judgment of the Trial Term solely upon the
ground that plaintiff had failed to establish actionable negligence on
the part of the defendant, the determination was equivalent to an
express reversal on the law and affirmance on the facts. The con-
clusion of this court that the reversal upon the law was error leaves the
facts found by the jury favorable to plaintiff, unaffected by the order
of reversal. Gilhooley v. Burgard.
445

6. Appeal may not be taken of right to Court of Appeals from order of
Appellate Division directing final judgment. In actions, except where a
new trial is ordered, no appeal as of right may be taken to the Court
of Appeals except from a final judgment. Such an appeal may not be
taken from the order of the Appellate Division directing such a judg-
ment; but upon an appeal from a judgment the appellant may in his
notice state that he appeals from it or from a specified part thereof.
(Code Civ. Pro. § 1300.) Morgan v. Sanborn.

454

7. When power of Court of Appeals to review on the evidence is not
defeated by unanimous decision of Appellate Division. When a defend-
ant's motion for a nonsuit is granted after a special verdict in favor of
plaintiff and the Appellate Division unanimously reverses the judgment
entered thereon and grants judgment on the special findings of the
jury, the reversal of the judgment is reviewed in this court on the
evidence and not on the special findings. The power of the Court of
Appeals to review on the evidence is not defeated even by the unani-
mous decision where the exceptions to rulings on evidence and to the
charge of the court sufficiently present the question whether the
special verdict rests on a foundation of legal error. Deyo V.

Hudson.

602

8. Not authorized direct to Court of Appeals from final judgment
entered upon reversal of interlocutory orders. An appeal cannot be taken
direct to the Court of Appeals from a final judgment entered after a
reversal by the Appellate Division of interlocutory orders of Special
Term. Section 1336 of the Code of Civil Procedure does not apply.
Noble v. Kendall (Mem.).
673
See Hudson Navigation Co. v. Union Trust Co. (Mem.), 636;
Rudiger v. Coleman (Mem.), 662; Leopold v. City of New
York (Mem.), 663; Logan v. Guggenheim (Mem.), 664;
Kennedy v. Natl. Jewelers Bd. of Trade (Mem.), 664; Preston
v. Pennsylvania R. R. Co. (Mem.), 665; Hooker, Corser &
Mitchell Co. v. Hooker (Mem.), 702; Shields v. Van Kelton
Amusement Corp. (Mem.), 708.

Compensation of attorney on appeal from judgment of death.
See ATTORNEYS.