Bohlen v. Metropolitan Elevated Railway Co.

Dugro, J. The general term of this court recently held in Pappenheim v. Railway Co., 7 N. Y. Supp. 679, that findings of fact such as appear in the decision of this case are in irreconcilable conflict. Adopting this as a proper conclusion, it seems that it is impossible, from the record before us, to say [425] which of the conflicting findings is correct. The error sought to be remedied by the order appealed from is therefore judicial, and cannot be corrected after judgment upon a motion made at a term other than that at which the judgment was rendered. Rockwell v. Carpenter, 25 Hun, 529; McLean v. Stewart, 14 Hun, 472; Gardiner v. Schwab, 34 Hun, 583; Freem. Judgm. §§ 70, 101. The order should be reversed.