Felts v. Clapper — 23 N.Y.S. 508

Majority

p. 508

(69 Hun, 373.)

FELTS et al. v. CLAPPER.

(Supreme Court, General Term, Third Department.

May 9, 1893.)

Headnote

1. Action before Justice—Right to Open and Close. ,

In an action before a justice of the peace for goods sold and delivered, where the answer contains a general denial, putting in issue the questions of sale and delivery, and of price and payment, plaintiff has the right to open and close.

3. Nonsuit—Sufficiency of Evidence.

Where the evidence is sufficient to sustain a verdict for plaintiff, the court should not grant a nonsuit

Appeal from county court, Columbia county.

Action before a justice of the peace by John P. Felts and another against Lester Clapper. From a judgment of the county court affirming a judgment for plaintiffs, defendant appeals.

Affirmed.

Argued before MAYHAE, P. J., and PUTNAM and HERRICK, JJ.

E. R. Harder, for appellant.

E. R. Peck, (W. C. Daley, of counsel,) for respondents.

This is an appeal from the judgment of the county court of Columbia county affirming the judgment of a justice of the peace. The first point made by the appellant is that the justice erred in refusing to admit the defendant to open and close the case, on the ground that he had the affirmative of the only issue. The action was to recover for goods sold and delivered, and the answer contained a general denial of the allegations of the complaint, and put in issue the question of sale and delivery, as well as that of price and payment. Upon the pleadings, therefore, the plaintiffs had the affirmative of tire issue, and the justice was right in giving them the right of opening and closing the case.

It is also objected by the appellant that there was a misjoinder of parties plaintiff, and that for that reason the justice erred in not nonsuiting the plaintiffs on the trial. There was some evidence that the plaintiffs owned the property sold, and for which this action was prosecuted, together, and enough, I think, to uphold the yen diet of the jury upon that subject; and the rule is universal that,

p. 509

when the evidence upon a disputed question of fact is sufficient to sustain the verdict of a jury on such disputed fact, it is the duty of the trial court to submit such question of fact to the jury. I think that that question was one of fact, in this case, and was therefore properly disposed of by the justice. The evidence seems undisputed that at the time of the sale of this property to the defendant it belonged to both the plaintiffs. ■

We have carefully examined the objections and exceptions by the defendant to the ruling of the justice in the receipt and rejection of evidence on the trial, and find no error for which this judgment should be reversed. Judgment affirmed, with costs.

PUTNAM, J., concurs. HERRICK, J., concurs in result.