Vogel v. Werner — 101 N.Y.S. 21

Majority

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VOGEL v. WERNER et al.

(Supreme Court, Appellate Term.

November 14, 1906.)

Headnote

New Trial—Verdict Contrary to Evidence—Contradictory Evidence.

Where plaintiff’s uncorroborated, but clear and explicit, testimony was that he was hired by the year at a weekly rate, and this was contradicted by defendant alone, who testified that the hiring was by the week, it cannot be contended that a verdict based on1 plaintiff’s contention, is against the weight of the evidence, so as to justify setting it aside, though the trial judge would have arrived at a different conclusion.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 146-1#8.]

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Morris Vogel against Charles Werner and another. From an order setting aside a verdict in favor of plaintiff, he appeals. Reversed, and verdict reinstated.

Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.

Philip I. Schick, for appellant.

J. Fairfax McLaughlin, for respondent.

The issue in this case was purely one of fact— the plaintiff testifying that he was employed for one year at the weekly rate of $18, subsequently raised to $20, per week, from April 1, 1905, to April 1, 1906; that he was discharged without cause nine weeks before the expiration of his term; and that during that nine weeks of the unexpired term he was unable to find employment for but one week, for which he received $14". This was disputed by the defendant, who claimed the plaintiff was hired and paid by the week only. Upon the issue thus raised the case was submitted to the jury in a charge by the judge fully as favorable to the plaintiff as the testimony warranted, to which charge neither side excepted, and the jury found a verdict for the plaintiff. Upon motion, made immediately at the close of the trial, but not decided until some time thereafter, the justice set aside the verdict as being against the weight of evidence, giving no reason therefor. In a case where the testimony of the plaintiff is clear and explicit in support of his contention, and, although uncorroborated, he is only contradicted or disputed by the defendant, it can hardly be said that the verdict is against the weight of the evidence; and that

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the trial judge would have arrived at a different conclusion than did the jury is no ground for setting aside the verdict.

Order reversed, with costs, and verdict reinstated. All concur.