Boughton v. O'Connell

This is an appeal by plaintiffs from a judgment of the city court in favor of the defendant for the sum of $63.72, entered upon the verdict of a jury on the 18th day of May, 1898, and from an order denying plaintiff’s motion for a new trial upon the judge’s minutes, and upon all the grounds specified in section 999 of the Code of Civil Procedure. A careful examination of the record convinces us that the verdict of the jury was against the weight of the evidence, and that the motion to set aside the verdict and for a new trial was improperly denied. Our conclusion, which might otherwise not be strong enough to permit us to annul the finding of the jury, is amply strengthened by a perusal of the defendant’s letter of October 16, 1897, which was introduced in evidence. Following the terms of relief granted in the case of Pierce v. Railway Co., 21 App. Div. 427 , 47 N. Y. Supp. 540 , the order denying the motion for a new trial will be reversed, and a new trial granted, upon condition that the plaintiffs pay the bill of costs and disbursements of the former trial to the defendant within 10 days; the appellant to have costs of this appeal, to abide the event of the action. O’DWYER, J., concurs.