Rishel v. Weil — 61 N.Y.S. 1112

Majority

p. 1112

RISHEL et al. v. WEIL et al.

(City Court of New York, General Term.

December 29, 1899.)

Headnote

Trial—Instructions.

Instructions having no bearing on the questions sent to the jury are properly refused.

Appeal from trial term.

Action by John K. Eishel and another against August Weil and others, composing the firm of Weil, Haskel & Co. Judgment for plaintiffs. Defendants appeal. Affirmed.

Argued before FITZSIMONS, C. J., and HASCALL, J.

Abram Kling, for appellan Is.

Alexander & Colby, for respondents.

This is an appeal by the defendants from a judgment entered upon a verdict, and also from an order denying a motion for a new trial. The principal question of fact that was litigated, or that needed the decision of the jury, was as to the allowance of the sum of $305.18, for which defendants claimed to he entitled to credit, upon the adjustment of accounts between the parties to the action; the total claim being $994.83. Defendants admitted that at the time of the trial plaintiffs were entitled to recover $185.45, and the court directed a verdict, upon the conclusion of the evidence, for the sum of $570.18, but submitted to the jury the question as to whether defendants were entitled, in addition thereto, to allowance for discounts and commissions aggregating $305.18, claimed by them. The jury returned the verdict for the amount directed, as well as the latter item, making altogether $875.36. The appellants complain of this disposition of the case below, and assign for error the refusal of the court to charge concerning an account stated, a matter academical, and also denial ©f permission to defendants to go to the jury as to the amount of ' credit to be given on account of the return of the Bichardson goods. We find that the record fully bears out the decision of the court upon defendants’ requests, and for the reasons stated upon the trial, and therefore deem it quite unnecessary to discuss, or examine in detail, the different items of testimony and authorities cited to change the effect of a determination arrived at by the trial jus

p. 1113

tice, who properly says that the grounds of complaint as to account stated have “no bearing upon the questions sent to the jury for detemination.”

It follows that the judgment and order appealed from must be affirmed, with costs and disbursements.

FITZSIMONS, C. J., concurs.