Brown v. Sullivan — 139 N.Y.S. 555

Majority

p. 555

BROWN et al. v. SULLIVAN.

(Supreme Court, Appellate Division, Fourth Department.

January 15, 1913.)

Headnote

Justices of the Peace (§ 190*)—Appeal—Ordering New Trial.

Under Code Civ. Proc. § 3063, which provides that, where the judgment is against the weight of the evidence, the appellate court may reverse and order a new trial, the County Court, reversing a judgment of a justice’s court on the ground that the verdict was against the weight of the evidence, should order a new trial before the same justice.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 734; Dec. Dig. § 190.*]

Appeal from Cattaraugus County Court.

Action by George Murray Brown and another, as executors, etc., against Cornelius Sullivan. From a judgment of the County Court, reversing a judgment for defendant, he appeals. Modified, so as to provide for a reversal of the judgment of the justice’s court and the granting of a new trial before the same justice, on the ground that the verdict was against the weight of the evidence.

Argued before McLENNAN, P. J., and KRUSE, ROBSON, FOOTE, and LAMBERT, JJ.

P. S. Collins, of Olean, for appellant.

F. J. Shaffer, of Olean, for respondent.

While the evidence is such as might sustain a finding that there was an agreement so as to give the defendant a lien under the Lien Law (Consol. Laws 1909, c. 33) upon the cow for pasturing and boarding her, entitling him to the possession of the animal, it is evident, from the colloquy between the justice and the jury and the verdict rendered, that the jury charged the defendant with the value of the cow and allowed the same upon the counterclaim for the keeping, fixing the amount of the counterclaim at $5 more than the value of the cow, and rendering a verdict for the excess. The County Court evidently held the allowance excessive, and properly reversed the judgment; but we think a new trial should have been ordered in the justice’s court, as may be done under section 3063 of the Code, where the vérdict is against the weight of the evidence.

Judgment of County Court modified, so as to provide for a reversal of the judgment of the justice’s court without costs, and the granting of a new trial before the same justice, upon the ground that the verdict is against the weight of the evidence, with costs in this court to the appellant to abide the event. New trial to be had on the 29th day of January, 1913, at 10 a. m.