Goldman v. Matzger — 106 N.Y.S. 1093

Majority

p. 1093

GOLDMAN v. MATZGER.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Appeal—Reversal—Necessity op New Trial.

Where the verdict seems to have been given without a careful weighing of the probabilities and reasonable inferences to be drawn from the.testimony, and without due regard to the rule that the party who holds the affirmative of the issues must bear the burden of proof, judgment will be reversed, for a new trial.

[Ed. Note.—Por cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4604-4609.]

Appeal from City Court of New York, Trial Term.

Action by Isidor Goldman against Joseph Matzger. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and ERLANGER, JJ.

Arnstein & Levy (Emil Goldmark, of counsel), for appellant.

Leopold Freiman, for respondent.

A careful examination of the record in this case leads us to the conclusion that the issues should be again laid before a jury for their determination. The contract alleged by the plaintiff to have been made with the defendant is so much out of the ordinary course of business transactions, when viewed in the light of the surrounding circumstances disclosed by the evidence, as to give it more than a tinge of improbability. The verdict seems to have been given without a careful weighing of the probabilities and reasonable inferences to be drawn from the testimony, and without due regard for the well-known rule of law that the party who holds the affirmative of the issues must bear the burden of proof. We are firmly of the opinion that the interests of justice will be best subserved by ordering a new trial.

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