Virgil v. Newmark

If the appeal succeed, it must be because of manifest inadequacy of verdict, or as being against the evidence. There *754is no point made against the instruction and charge of the justice presiding at the trial, nor against rulings resulting in exceptions taken; but it is claimed by appellant that the jury went so far astray that, on the instant, the verdict ought to have been pronounced by the court to be ill-founded.

The verdict was, doubtless, the result of effort, on the part of the jury, conscientiously to adjust the differences between the parties. They manifestly considered and gave weight to the defendant’s claim, at the same time upholding the charges of plaintiff. But the evidence does not sustain the finding made by the jury, and the award of six cents should not be allowed to stand; for, if plaintiff be entitled to recover at all, it must be upon the basis of disbelief of the first defense and of casting out from consideration the second defense set up in the answer. This latter matter is not in any wise averred as a counterclaim. The jury evidently considered that the respondent almost established his defense. Clearly the verdict should have been entirely in favor of defendant, if plaintiff’s proofs were inadequate; or, upon their belief of failure of these defenses, wholly in plaintiff’s favor for the amount claimed. As to our duty upon this appeal, the cases of Smith v. Ins. Co., 49 N. Y. 216, and Hatch v. Attrill, 118 id. 389, exactly apply. The verdict was contrary to the evidence.

Judgment and order appealed from reversed and new trial ordered, with costs to appellant to abide the event.

Conlan and Schuchman, JJ., concur.

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