Dudley v. Campbell — 62 N.Y.S. 1036

Majority

p. 1036

DUDLEY v. CAMPBELL.

(City Court of New York, General Term.

March 2, 1900.)

Headnote

Appeal and Error—Verdict—Conflicting Evidence.

The verdict of the jury on conflicting evidence will not be disturbed on appeal.

Appeal from trial term.

Action by A. Palmer Dudley against Henry Campbell. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before FITZSIMOAS, C. J., and COALAA and O’DWYER. JJ.

John H. Bogan, for appellant.

Julius Offenbach, for respondent.

The action was to recover for services of the plaintiff as a physician and surgeon, performed, as it is alleged, at the request of the defendant. The answer denies the contract, and the evidence on both sides is conflicting. In the charge to the jury the court, among other things, said:

“Now, it is purely a question of fact. You are the sole judges of the fact. The simple question is whether this contract has been made or whether it has. not been made. If you come to the conclusion, from all the evidence, that the contract has been made, as Dr. Dudley testified, then, of course, the plaintiff would he entitled to a verdict.”

Upon this submission of the controversy, the jury determined the facts in favor of the plaintiff, and we have no disposition to-interfere with the conclusions thus reached. There was no exception to any portion of the charge. The question was purely one of fact, and was peculiarly for the jury to pass upon.

For the reasons stated, the judgment and order appealed from, must be affirmed, with costs. All concur^