Banzhaf v. Ludwig — 57 N.Y.S. 828

Majority

p. 828

BANZHAF v. LUDWIG et al.

(City Court of New York, General Term.

April 27, 1899.)

Headnote

Appeal—Review—V erdicts.

A verdict will not be disturbed as against the weight .of the evidence, unless it distinctly appears that manifest error or injustice has been committed.

p. 829

Appeal from .trial .term.

Action by Frederick Banzhaf against Bernhard J. Ludwig and others. From a judgment entered on a verdict for plaintiff, and from, an order denying a new trial, defendants appeal.

Affirmed.

Argued before McCABTHY and CQNLAN, JJ.

Wager & Acker, for appellants.

-Julius Heiderman, for respondent.

This is an appeal from a judgment of the trial term,, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action is for damages for personal injury. The-plaintiff was a carpenter in the defendants’ employ, and had been such for two years prior to the accident, and was under the orders off one Beck, who was the foreman with respect to the work being done-upon the defendants’ premises. A temporary scaffold of planks erected in a show window of defendants’ place fell on the 10th day of April,. 1895; and the plaintiff, who was working upon the scaffold, fell and was injured. There is some dispute as to when this scaffold was erected; the plaintiff asserting that it was erected on the 9th of April, the day previous to the accident, while the witness Beck, for the defendants, says it was erected on the morning of the 10th of April. The plaintiff is fully corroborated in his testimony upon this point, and we- . cannot say that there was not a fair preponderance of evidence in his-, favor on this as on all the other matters which were submitted to the-jury. It does not appear that the plaintiff participated in any way in the erection of this scaffold; and he says that the foreman directed him to go on it the morning of the 10th of April, declaring it to be-sufficient for the purpose for which it was erected. ' It is in evidence, also, that another workman called the attention of Beck to the scaffold,, and that it required some blueing, and that Beck replied that it was all right. '

Thus it appears that the whole ease was fairly submitted to the jury, and it is not in the province of a court of appeal to interfere with the-deliberations and findings of the jury, unless it distinctly appeared’ that manifest error or injustice had been committed. In the case at bar, we do not find any such objections or exceptions presented by the record; and, for the reasons stated, the judgment should be affirmed.

Judgment and order appealed from affirmed, with costs.

McCABTHY, J., concurs.