Majority
p. 908Second Department, December, 1919. George Milne and Peter H. Cram, Appellants, v. James H. Cruikshank and William D. Kilpatrick, Respondents.
Headnote
New trial — where verdict not sustained by preponderance of evidence.Appeal from an order of the Supreme Court entered in the Kings county clerk’s office May 20, 1919.
Order unanimously affirmed, with costs, upon the opinion of Mr. Justice Clark at Trial Term. Present — Rich, Putnam, Blackmar, Kelly and Jayeox, JJ.
The following is the opinion of the court below:
The verdict is set aside and a new trial is granted. The verdict necessarily involved a finding by the jury that the defendants, with full knowledge of the language of the covenant against nuisances contained in the deed of the Mt. Vernon lots, waived such covenant and were willing to exchange their Manhattan property for the Mt. Vernon property. Such knowledge and waiver were not established by a fair preponderance of evidence, and the finding of the jury was in that respect against the weight of evidence.