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Sohlman v. Cluny Art Embroidery Co.

129 N.Y.S. 106 Court N.Y. App. Term Decision date 1911-05-04 English

Delivered by LEHMAN, J.

Contents

Majority

p. 106
SOHLMAN v. CLUNY ART EMBROIDERY CO.
(Supreme Court, Appellate Term.
May 4, 1911.)

Headnote

Trial (§ 315[1] 1 —Compromise—Verdict.
Where the jury, in an action for damages for breach of contract, first announced a disagreement, and, after being sent out to consider the case further, again returned and announced by their foreman, “We agree to half the amount for the plaintiff, that he claimsbut, being polled, a juror stated, “It is not entirely settled,” and, being again sent out, they returned and announced a verdict for “half of the wages for plaintiff,” a new trial should be granted.
[Ed. Note.—For other cases, see Trial, Dec. Dig. § 315.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
p. 107
Action by Jacob Sohlman against the Cluny Art Embroidery Company. From a judgment of the Municipal Court of the City of New York, entered upon a verdict rendered in favor of the plaintiff, defendant appeals.
Reversed, and new trial granted.
Argued before SEABURY, LEHMAN, and GERARD, JJ.
George Malraison, for appellant.
Michael V. Rosenberg, for respondent.

The plaintiff sues for damages for breach of contract of employment. His testimony is full of inconsistencies and improbabilities, yet, if the record showed that the jury had agreed that he was telling the truth, I should be averse to disturbing their verdict. I believe, however, that they did not agree, and that their verdict represents only a compromise. They first returned and announced a disagreement. They were sent out to consider the case further, and again returned, and the foreman announced: “We agree to half the amount for the plaintiff, that he claims.” When polled, however, the sixth juror stated that “it is not entirely settled.” The trial justice sent them out again, and they returned and announced that their verdict was, “Half of the wages for plaintiff.” In view of these facts, as well as the unsatisfactory nature of the testimony, a new trial seems required in the interest of justice.

Judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.