New York Evening Journal Publishing Co. v. William F. Simpson Advertising Co.

The issue upon the affirmative defense, so far as it presented a question of fact, was resolved by the jury in favor of defendant. Two juries upon admittedly the same testimony have accepted defendant’s version. There is no indication in the record that the jury’s deliberations were swayed by passion or prejudice. While it is true that upon the first trial the learned justice presiding set aside the verdict upon plaintiff’s motion, yet it is evident from the memorandum filed by him upon granting the motion that his judgment was largely controlled by a line of authorities, exemplified by Hopkins v. Clark, 14 Misc. Rep. 599 , 36 N. Y. Supp. 456 , that the burden of proof is not sustained where the question of fact rests upon the testimony of unimpeáched interested witnesses of equally good character conflicting, a doctrine not now accepted. McDonald v. Met. St. Ry. Co., 167 N. Y. 66 , 60 N. E. 282 ; Steinle v. Same, 69 App. Div. 85 , 74 N. Y. Supp. 482 ; Philips v. Philips, 77 App. Div. 113 , 78 N. Y. Supp. 1001 ; and the recent case of Gordon v. Ashley 191 N. Y. 186 , 83 N. E. 686 .

This court, upon the appeal from the order setting aside the verdict of the jury, saw fit, not to disturb the exercise of the direction of the trial court, who had opportunity to observe the witnesses. Upon the second trial we find that the jury has again found for the. defendant, and the learned justice then presiding refused to set aside the verdict. The circumstance that two juries have credited the defendant’s testimony and the action of the trial justice in denying the motion to set aside the verdict are entitled to much consideration in an appellate court. McMahon v. Jacob, 76 App. Div. 346 , 78 N. Y. Supp. 432 ; McCoy v. Munroe, 76 App. Div. 435 , 436, 78 N. Y. Supp. 849 . There was nothing inherently improbable in defendant’s testimony. On the contrary, it was not an unlikely situation for the defendant, insolvent at the time and endeavoring to effect a settlement with its creditors, to induce a compromise upon the promise to secure new business for its creditor; and, as already observed, there is no indication or suggestion that the verdict was procured through passion or prejudice.

The contention of appellant that the affirmative defense of an accord and satisfaction did not rest upon a sufficient consideration cannot be upheld. Jaffray v. Davis, 124 N. Y. 164 , 26 N. E. 351 , 11 L. R. A. 710 . The alleged promise of defendant to secure new business for plaintiff was of a very definite character, if the testimony of its manager is to be believed, referring, as it did, to certain specified advertising which defendant at that time controlled.

As to the alleged error in permitting defendant to show that it furnished advertising to plaintiff pursuant to the agreement, it may be that the testimony was not necessary to maintain the defense, yet

The judgment should be affirmed, with costs to respondent. All concur.