Henry Kroeger Construction Co. v. Snell — 111 N.Y.S. 562

Majority

p. 562

HENRY KROEGER CONST. CO. v. SNELL.

(Supreme Court, Appellate Division, Second Department.

June 29, 1908.)

Headnote

Appeal and Error—Verdict—Gonclusiveness.

A verdict on conflicting evidence and rendered on correct instructions will not be disturbed on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.]

Appeal from Trial Term, Kings County.

Action by the Henry Kroeger Construction Company against Frederick Snell. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals.

Affirmed.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

p. 563

Harrison S. Moore, for appellant. -

Wray & Callaghan, for respondent.

The Henry Kroeger Construction Company, through its president, made and delivered its promissory note for $3,000 to the defendant, and the latter procured its discount at a bank. The plaintiff claims that the proceeds of this note never came into its possession, but was retained by the defendant. The latter claims that the proceeds of the note, less the discount of $30, was paid over to the president of the plaintiff. The case was complicated by an alleged illegal agreement between the parties, but the issue tried was whether the .defendant delivered the proceeds of the note to the president of the plaintiff company, and upon this issue there was a distinct conflict of evidence.

There were no motions to dismiss at the close of plaintiff’s case, none at the close of the testimony, and the case was submitted to the jury under a charge to which neither party took any exceptions; and, while the appellant complains at certain evidence being permitted in the case over his objection and exception, none of these exceptions appear to be seriously urged, and so far as we are able to discover there was no error in this regard. There is, therefore, no question of law presented, except, possibly, that the verdict is against the weight of evidence. But the court charged correctly as to the weight of evidence. There was one witness on one side and two witnesses on the other, and the court pointed out clearly the interest of - each of the witnesses and called attention to defects in the plaintiff’s evidence, so that the whole matter went to the jury, and where there is sufficient evidence to support a verdict the appellate courts as a rule do not disturb it. This case seems to have been carefully tried, and substantial justice has been reached, so far as we are able to discover.

The judgment and order appealed from should be affirmed, with costs. All concur.