R 5522.Disposition of appeal.

This rule is derived in part from subd 1 of CPA § 584, which, except for its last sentence, was a repetition of § 8 of article VI of the Constitution. It was taken from § 1317 of the Code of Civil Procedure, which originally provided:

“Upon an appeal from a judgment or an order, the [court] . . . may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all parties; and it may, if necessary or proper, grant a new trial or hearing.” That provision was interpreted to mean that “a new trial was necessary unless it appeared to be impossible and not merely improbable that the result would be changed.” Lamport v Smedley, 213 NY 82, 84, 106 NE 922, 923 (1914), citing Elliott v Guardian Trust Co. 204 NY 212, 97 NE 521 (1912), and Duclos v Kelley, 197 NY 76, 89 NE 875 (1909). CPA § 1317 was amended in 1912 (Laws 1912, c. 380) to the form found in subd 1 of former § 584. Subsequent decisions made it clear that the amendment achieved its purpose: in appropriate nonjury cases, an appellate court may deal with the evidence as the trial court should have done and render final judgment without granting a new trial. See, e.g., Waddle v Cabana, 220 NY 18, 114 NE 1054 (1917). Although the wording of this rule varies from that of former § 584(1) and the constitutional provision, it is intended to convey more accurately the interpretation which has been given by existing case law, under which an appellate court has the power to render whatever decree the justice of the case requires. See Lamport v Smedley, supra.

The scope of this power is illustrated by a recent Court of Appeals decision. In an action to recover for injuries sustained in an automobile collision, the Supreme Court set aside a jury verdict for the plaintiff for inadequacy of damages and granted a new trial. On appeal, the Appellate Division modified the order by conditioning the granting of the new trial upon the defendant’s refusal to stipulate to increase the verdict. The defendant did so stipulate and judgment was entered from which the plaintiff appealed. The Court of Appeals held that the Appellate Division had power to make such a modification since § 584 permits an appellate court to act in the same manner as a trial court. O’Connor v Papertsian, 309 NY 465, 131 NE2d 883 (1956). The same result would be reached under this rule. The “necessary or proper” qualification comes into play in cases tried by a jury as of right where the appellate court reverses upon the facts; in this situation the appellate court must order a new trial or hearing. See, e.g., Imbrey v Prudential Ins. Co. of America, 286 NY 434, 36 NE2d 651 (1941).

This broad grant of power renders unnecessary subd 2 of former § 584 and all of former § 585. Subd 2, added to former § 584 in 1936, did no more than restate what was apparent from subd 1, that nonjury cases fell within the appellate court’s broad power of disposition. See, e.g., Waddle v Cabana, supra.

CPA § 585, derived from the last sentence of § 1187 of the Code of Civil Procedure, served a definite purpose in giving appellate courts power to direct judgment when former § 1317 (later § 584) was interpreted to mean that a new trial was necessary unless it appeared impossible that the result would be changed. With the 1912 amendment of § 1317, as previously noted, the need for this provision vanished. Cf. Laws 1949, c. 604 (repealing the equivalent portion of CPA § 1187 placed in § 459 and dealing with trial court power to direct judgment after a special verdict); Sullivan v Metropolitan St. Ry. 37 App Div 491, 56 NY Supp 88 (1st Dept 1899). Nor is it necessary to specifically state, as § 585 did, that a special or general verdict forms a part of the record since it is indicated in the article dealing with judgments that a verdict is part of the judgment-roll.

This rule is qualified by the constitutional limitation that the Court of Appeals may only answer the certified questions in appeals from nonfinal orders by permission of the Appellate Division (see § 5614 and notes) and should also be read in conjunction with §§ 5613 and 5615.

The last sentence of this rule is taken from the last sentence of subd 1 of CPA § 584 without change.

1976 Recommendations of the Committee to Advise and Consult with the Judicial Conference on the Civil Practice Law and Rules:

Rule 5522 of the Civil Practice Law and Rules would hereby be amended by reverting to the text as it read before the amendment effected by Chapter 407 of the Laws of 1975.

Before the 1975 amendment the pertinent requirement of Rule 5522 was that a court reversing or modifying a judgment or order without opinion shall briefly state the grounds of its decision. Chapter 407 of the Laws of 1975 enlarged the directive by also requiring a statement of grounds for an affirmance. It was felt that this would add to the knowledge of attorneys, especially counsel to the parties in the particular case.

Experience indicates that the new requirement is in practice a heavy burden on the appellate courts and of no substantial benefit to attorneys.

The following words of the Presiding Justice, Second Judicial Department, are instructive: .

I have been informed that when the bill containing this amendment to section 5522 CPLR was presented, it was opposed by the Office of Court Administration. Speaking on behalf of the Appellate Division in the Second Judicial Department, which handled 4,567 cases and 5,768 motions during 1975, the blanket requirement that an opinion accompany all affirmances, even if briefly stated, adds substantially to the already heavy burdens to which our judicial and nonjudicial personnel have been and are continuing to be subjected as the caseload continues to increase Equally instructive are the comments of the Presiding Justice, Fourth Judicial Department: .

The requirement has greatly increased the amount of writing in our court and I believe all the appellate courts, much of which could be dispensed with. Obviously where a legal question of general interest to the Bar is presented or where an affirmance is on grounds other than those relied on by the court below, there should be a written opinion or memorandum and I think it was the practice of all of the appellate courts to write in such cases. However, to arbitrarily require writing in all cases appears to involve not only a time consuming process, but adds an unreasonable amount of material required to be published and presumably digested by a great number of the members of the Bench and Bar During all of 1975 the Court of Appeals judges wrote 444 opinions and memoranda; in the first half of 1976 alone they wrote 522 opinions and memoranda.

In the Appellate Division, First Judicial Department, 1737 opinions and memoranda were written in 1974, of which 80 related to affirmances. In 1975 in the First Department there were 954 opinions and memoranda, of which 267 were affirmances; in the first eleven months of 1976 there were 1239 opinions and memoranda of which 715 involved affirmances.

The Appellate Division, Third Judicial Department, in 1975 rendered 151 full opinions and 387 memorandum decisions; in 1976 the court wrote 198 full opinions and 1198 memorandum decisions, 48 dissenting memorandums and 40 dissenting and concurring opinions. The chief cause of this increase is ascribed to Ch. 407 of the Laws of 1975.

The Advisory Committee has been informed that largely as a result of the additional appellate writings attributable to the 1975 amendment of CPLR 5522, the cost of publication of the Official Reports has increased to such an extent that a deficiency of about $180,000 is projected in the Official Reporters budget for the current fiscal year.

The number of pages published annually in the New York (Court of Appeals) Reports rose from 2,111 in 1974 to 2,265 in 1975 and is projected to reach 3,592 in 1976. The number of pages in the Appellate Division Reports rose from 2,965 in 1974 to 3,534 in 1975 and is projected to reach 4,615 in 1976.

Add, L 1962, ch 308; amd, L 1963, ch 532; L 1975, ch 407 amd by Judicial Conference, eff Sept 1, 1977; L 1986, ch 682, § 11, eff July 30, 1986.