"Love a la Mode." And it often happens that the dissenting judge occupies not only in the layman but in the legal mind a higher repu tation for attainment in jurisprudence than do the majority of judges differing with him. A New York legislator recently conceived the idea of a statute forbidding the State re porter to print a dissenting opinion. But doubtless the Federal supreme court judge who wrote the dissenting opinion favoring the constitutionality of the Income statute is prouder of it than his fellows, whose ma jority made it invalid and precipitated a great political struggle, are of their own opinions. The New York court of appeals has very recently reprehended another fresh usurpa tion of the interlocutory appellate court immediately below. It condemned the prac tice of dismissing the complaint absolutely where they reverse a judgment in a case which has been tried before a jury and ob served. " No matter how hopeless the plain tiff's cause of action may seem on the record contained in the printed appeal book, there is almost always a possibility that it may be improved if he is allowed to try the case over again. We are not satisfied with the action of the general term in ordering final
judgment on the merits, even if the evidence was not sufficient to justify the submission of the case to the jury— a question which we do not now decide. We are unable to say that other evidence may not be in existence which may materially change the facts with reference to these transactions. We there fore think that a new trial should have been ordered." The suit was an action for negli gence in which the plaintiff was a child who had been crippled by falling into a cellar way. The motion being for a new trial it should either have been granted or refused, whereas the usurping court practically denied it by ordering what was practically a nonsuit and ex mero molu ordering a nisi prius judgment. One moral arising from the foregoing re flections is that legislative prohibition or limitation should regulate usurpation by appellate courts. Another moral is that while their judges disdain to be influenced by Baconian considerations, they should take heed lest pride, self-consciousness, and the favoritism of their own faith in themselves, shall accomplish results akin, in all save ethics, to those adduced by bribery, favor itism, prejudice or undue sympathy, which are judicial crimes.
