Opinion
March, 1916.
Although the defendant has appealed merely from the judgment, without any motion for a new trial, this court since the 1914 amendment of Code of Civil Procedure, section 1346, has power to review the facts. ( Middleton v. Whitridge, 213 N.Y. 499.) The basis of the complaint is that defendant's Halsey street car stopped in the block before reaching the corner of Lewis avenue, and then started ahead before plaintiff had alighted. The testimony of plaintiff and her daughter is clearly overborne by the disinterested testimony of three passengers on the car, and a letter carrier standing on the street corner, all in agreement that plaintiff tried to get off while the car was coming to a stop, and that the car had not stopped before it came to the near side of the crossing. The judgment of the County Court of Queens county is, therefore, reversed on the facts, and a new trial is ordered, costs to abide the event. Jenks, P.J., Stapleton, Mills, Rich and Putnam, JJ., concurred.