McCain v. Minnerly

Order unanimously affirmed, with costs. The case was tried and submitted to the jury on a defense of justification, not pleaded in the answer; but apparently this was done with the acquiescence of both parties, and is not, therefore, a valid ground of objection to the verdict, nor was such ground urged. Assuming that the case was tried upon this issue, there was a serious question of fact as to whether the plaintiff had committed a felony; and under the circumstances of the case we think that the judgment of the trial court upon the weight of the evidence upon this subject should not be *958disturbed. We have not considered the weight of evidence on the question of the delay in arraigning plaintiff before a magistrate, for the verdict might have been based on a finding against the defense of justification. Present — Jenks, P. J., Rich, Putnam, Blaekmar and Kelly, JJ.