Majority
p. 908Second Department, February, 1922. Anna Lewis, Respondent, v. Title Guarantee and Trust Company, as Administrator c. t. a. of Hiram Duryea, Substituted in Place of Cornelius B. Van Brunt, Deceased, Formerly Sole Surviving Executor of Hiram Duryea, Deceased, Appellant.
Headnote
Trial — verdict — weight of evidence — instructions to jury.Appeal from a judgment of the Supreme Court, entered in the Queens county clerk’s office March 7, 1921, upon the verdict of a jury, and also from an order entered on the same day.
Judgment reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff file a stipulation to reduce the verdict to the sum of $12,000, and to modify the judgment accordingly. If such stipulation be so filed the judgment as so modified is affirmed, without costs. Jaycox, Kelby and Young, JJ., concur; Blackmar, P. J., dissents, with a memorandum, in which Manning, J., concurs.
The charge that there was nothing unusual in the case and that it was a very simple matter and easy to determine, placed the case before the jury in a light unfavorable to defendant. The ease is unusual, in fact extraordinary, and should have been considered with the greatest care and caution. I think the verdict involving a finding that decedent agreed to pay plaintiff forty dollars a month for her life and furnish her a home was against the weight of evidence. The testimony, resting on the recollection of the witnesses, that the decedent used the words “ her life ” instead of “ his life ” is uncertain, and it seems to me inconsistent with the letters written by the plaintiff. Manning, J., concurs.