Lamborn v. Cohen

The issue presented is whether the jury’s finding that defendant gave orders to the plaintiffs in respect to his cotton account, which they failed to execute, was against the weight of the evidence. We are fully satisfied it was. Defendant’s testimony that such verbal orders were given is unsupported by documentary or other evidence. His claim is clearly against the probabilities. No possible reason for plaintiffs’ refusal or failure to execute the orders, if received, is presented or suggested. On the contrary, it appears, it would have been to plaintiffs’ advantage, rather than disadvantage, to have executed the orders. Plaintiffs’ claim that no such orders were ever received and that they were at all times advising defendant to protect his account and insisting upon additional margin to avoid selling him out, is supported by all the documentary evidence in the case.

The judgment and order should be reversed and a new trial ordered, with costs to appellants to abide the event, upon the ground that *129the verdict in defendant’s favor was against the weight of the evidence.

Dowling, P. J., Martin and Proskauer, JJ., concur; Finch, J., dissents.

(dissenting). While I might not have voted as did the jury if I had been a member, yet there is sufficient evidence, if believed to sustain the jury’s verdict. Whether the evidence should be believed is within the province of the jury. (People v. Katz, 154 App. Div. 44; affd., 209 N. Y. 311.) I, therefore, vote to affirm the judgment appealed from.

Judgment and order reversed and new trial ordered, with costs to the appellants to abide the event.