Majority
p. 477Regester et al. v. Edward Barr Co., Limited. (Superior Court of New York City, General Term. May 4, 1891.) Argued before Sedgwick, C. J., and Freedman, J.
Headnote
Review on Appeal—Excessive Damages.On the trial of an action, the issue litigated, as to due performance of a contract, was submitted to the jury on three different theories, without exception to the charge or request to charge otherwise, and without any motion to dismiss the complaint or to direct a verdict for defendant. Held, that a verdict for plaintiff in accordance with one of the theories submitted was not open to the objection that it was excessive, and could not be disturbed on appeal.
Appeal from trial term.
Action by Samuel W. Regester and others against the Edward Barr Company, Limited. Defendant appeals from a judgment for plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial.
Billings & Cardozo, for appellant. Black & King, for respondents.
The contract as to the iron soil-pipe in question is to be found in the correspondence between the parties. On the trial the issue whether the pipe delivered was the pipe which the defendant had agreed to buy and the plaintiffs had agreed to sell was sharply litigated, and submitted to the jury on three different theories. There was no exception to the charge, and no request made to charge otherwise; nor had the defendant asked the court to dismiss the complaint, or to direct a verdict for the defendant. The
p. 478
jury having found a verdict in accordance with one of the theories submitted, the verdict is not open to the objection that it is excessive. Upon the whole case I fail to perceive how the verdict can be disturbed. The judgment and order should be affirmed, with costs.