This action was brought by the plaintiff for damages sustained by him in the defendant's coal mine in Shenandoah, Pennsylvania, where he was employed. The complaint alleged that the plaintiff was a resident of the city and state of New York which was denied by the answer. The defendant also pleaded as a separate and distinct defense that the plaintiff was a non-resident and that it was a non-resident corporation. The court charged the jury among other things as follows:
"I will charge the jury without any qualification on that if the jury find this plaintiff came here to New York for the particular purpose of bringing this particular lawsuit and for that purpose alone, and that his residence here is not bonafide, it is their duty to find in favor of the defendant. Do you want it any differently? I will take your word for it.
"Mr. Brown: I think that is substantially so. If the jury believe the plaintiff came to New York for the purpose of bringing this action without the intention of becoming a resident, their verdict must be for the defendant."
"The Court: I so charge at the request of both counsel."
The Appellate Division by its order adjudged that the judgment and order appealed from be reversed and the complaint dismissed "on the ground that the plaintiff was not a bona fide resident of the state of New York and that the action should have been brought in the state of Pennsylvania." *Page 259
Pursuant to the provisions of section 1338 of the Code of Civil Procedure we must assume that all other questions of fact have been passed upon by the Appellate Division and affirmed in the plaintiff's favor.
By that section it must be conclusively presumed that the judgment was not reversed or a new trial granted upon a question of fact unless the particular question is specified and referred to in the order appealed from. The only reference in the order is to the fact regarding the plaintiff's residence.
As to this the Appellate Division have determined as a matter of law that there is no evidence to sustain a finding that the plaintiff was a bona fide resident of the state of New York.
In this we think the Appellate Division was in error.
The plaintiff testified that after he had been discharged by the defendant in Pennsylvania and being unable to get further work there, he came to New York at the invitation of a friend and obtained work in a pipe factory; that in March of 1916 he brought his family to New York and that since the time he first came he had not been back to Pennsylvania, but had lived at Woodhaven, New York, for about six months and thereafter went to live at 442 Greenwich street, New York city, until he moved to Greenpoint avenue, Brooklyn, which was his residence at the time of the trial. He also testified that when he came to New York city it was his intention to stay here permanently.
Upon this testimony we think a question of fact was raised which the court very properly left to the jury to determine as above stated whether or not at the time of bringing this action the plaintiff was a bona fide resident of this state and that the Appellate Division was in error in determining as a matter of law that there was no such issue, that the plaintiff was not a resident of New York state and that his complaint should have been dismissed. *Page 260
As the above was the only question of fact which the Appellate Division disapproved and all other questions of fact being approved, pursuant to the terms and provisions of section 1338 of the Code of Civil Procedure above referred to, the judgment of the Appellate Division must be reversed, unless there was error in the law. Whether there was any evidence of negligence and freedom from contributory negligence presents a question of law reviewable on this appeal. We have examined the evidence and conclude that there was sufficient evidence in the plaintiff's favor to require submission of this case to the jury.
The judgment appealed from should be reversed, and that of Trial Term affirmed, with costs in this court and in the Appellate Division.