On appeal from a judgment of the District Court of the city of Perth Amboy.
For the appellants, David T. Wilentz.
For the respondents, William H. Speer, Henry H. Fryling and Henry J. Sorenson.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. At the close of the plaintiffs' case, the trial judge, on defendant's motion, granted a nonsuit in this action to recover damages for injuries claimed to have been tortiously inflicted upon the infant plaintiff, Louis Biczis. His co-plaintiffs seek recovery of the consequential damage. A jury was empanelled on plaintiffs' motion.
Appellants assign two grounds for reversal, but press only one, viz.: Error "in granting a motion for nonsuit over the objection of the attorney for the plaintiffs-appellants." Relying upon the asserted insufficiency of this specification, respondent has refrained from a discussion of the meritorious question; no attempt is made to defend the challenged ruling. The insistence is that it is "meaningless and vague," and condemned by rule 145 of this court. And reliance is placed
upon a line of cases which hold that "the mere assertion that there was error in giving judgment to one party rather than to another is not sufficient." Caspert v. Empire Furniture Co., 114 N.J.L. 546; Golden Realty Co. v. Grant Building and Loan Association, 109 Id. 129; Cohn v. Passaic National Bank and Trust Co., 109 Id. 449; Eckert v. Nazzaro, 109 Id. 136; Miller v. Newark Hardware Co., 112 Id. 300; Casale v. Public Service Electric and Gas Co., 13 N.J. Mis. R. 266; Greenblatt Coal Co. v. Jacobs, 12 Id. 175; Kosick v. Standard Properties, 13 Id. 219.
It is said that this rule "requires a specification and not a generalization of grounds upon which the appeal is based;" and that there is no distinction in this regard between a nonsuit and a general judgment for the plaintiff or defendant at the close of the case. And the instant specification is characterized as "a general averment and not a specific statement of the grounds upon which the appeal is based." But this reasoning is obviously faulty. It evinces a misconception of the scope and effect of rule 145 and the underlying statutory provision. The rule merely requires "a brief specification" of the ruling made reviewable by paragraph 213 (a) of the act creating District Courts and regulating the practice therein. 2 Comp. Stat. 1910, p. 2016, as amended by chapter 77 of the laws of 1934 (Pamph. L. 1934, p. 201). This statute permits of a review only of questions of law made the subject of a ruling in the District Court. It limits the questions reviewable to "the determination or direction of such District Court, in point of law or upon the admission or rejection of evidence." The ruling complained of must exhibit a determination "in point of law."
But a nonsuit is manifestly a ruling of this character. In the instant case the holding was that, as a matter of law, the evidence furnished no factual basis for an inference of negligent conduct. The cases relied upon by respondent are not in point. A specification that judgment should have been rendered for the defeated party points to no judicial ruling in a matter of law. The judgment may well have been rested upon a determination of issues of fact; and it is fundamental
in this state that findings of fact on conflicting evidence may not be reviewed on appeal. The statute so ...