Berkowitz v. Wolfberg

CRAIL, J.

This is an action to recover damages for personal injuries sustained by the plaintiff in a fall while walking on the sidewalk adjacent to the place of business operated by the defendants. Cooking oil belonging to the defendants escaped out of containers and covered a large portion of said sidewalk and the plaintiff slipped and was injured while attempting to walk over the same. On the twenty-seventh day of August, 1934, the court sitting without a jury, having heard the evidence, found that the defendants were not in any way negligent and entered judgment accordingly.

[707]

Thereafter the plaintiff moved the court to vacate the judgment and to grant a new trial. On the 19th of October, 1934, this motion came on to be heard. After hearing said motion the court made the following minute order: “By the Court: The only question that I will consider on these motions for a new trial and to vacate the judgment, is the Sixth ground, and no other ground, to-wit: the insufficiency of the evidence to justify the judgment. ...” On the fifteenth day of November, 1934, the court made the following additional or supplemental minute order on said motions: “The plaintiff’s motion for a new trial heretofore submitted, is granted to the following extent only, to-wit: The judgment entered on the 24th day of September, 1934, is hereby vacated and set aside in the whole, but the Findings of Fact are retained, and this court now orders that a new and different judgment be entered thereon in favor of the plaintiff and for the sum of Seven Hundred Fifty ($750.00) Dollars, attorneys requested to prepare findings and judgment.” On the fifth day of December, 1934, the trial court signed and filed its formal order vacating its prior order for a new trial and its amended findings of fact and conclusions of law in which it set forth that the above order with regard to granting a new trial was limited to the setting aside of some of the findings of fact upon the ground that the evidence was insufficient to sustain them and making new findings in lieu thereof upon the same evidence and it further set forth that the court

inadvertently

omitted to eliminate the finding that the defendants were free from negligence. It further set forth that the defendants were guilty of negligence as set forth in the complaint to the plaintiff’s damage in the sum of $750, and or-dered the same to be filed