Kilpatrick v. Columbia Bank — 5 N.Y.S. 960

Majority

p. 960

Kilpatrick et al. v. Columbia Bank.

(Superior Court of New York City,

General Term.

June 28, 1889.)

Headnote

Appeal from jury term.

Action to recover a sum of money which plaintiffs claimed defendant had received to the use of plaintiffs. The answer, besides containing a general denial, alleged that the money was paid by plaintiffs to defendant as the purchase price of certain notes made by one Meyers, which notes were then held by the defendant. Defendant appeals.

Argued before Sedgwick, 0. J., and Freedman and Truax, JJ.

Adolph L. Sanger, for appellant. Kelly & MacRae, for respondents.

In this case I think the motion for a new trial, on the ground that the verdict was against the evidence, the defendant having, at the trial, claimed that the court should direct a verdict because the preponderance of evidence was with the defendant, should have been granted. The plaintiffs made a slight case. Many probabilities and intrinsic circumstances were in favor of defendant. The defendant’s witnesses gave substantial testimony in favor of plaintiffs. In rebuttal, the plaintiffs called as a witness a person for whose credibility he vouched by putting him under oath. That witness’ testimony told for the defendant, and against the plaintiffs, so clearly, and in such substantial respects, that to me it appears certain that the preponderance of evidence was with the defendant. The motion should have been granted. I think, also, that the verdict should have been directed for defendant, as requested on the trial. Judgment and order appealed from reversed, and a new trial ordered, with costs to appellant to abide the event.