Goodwin v. Washburn — 66 N.Y.S. 473

Majority

p. 473

GOODWIN v. WASHBURN et al.

(City Court of New York,

General Term.

October 29, 1900.)

Headnote

Appeal—Verdict—Review.

Where the defense to an action was that the defendant was not individually liable for the claim sued on, but that it was against the executors of a deceased person, and no exceptions were taken to the instructions, a verdict adverse to the defendant will not be reviewed on appeal where not in disregard of the evidence.

Appeal from trial term.

Action by George S. Goodwin against William T. Washburn and another. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

Argued before FITZSIMORS, O. J., and CORLAR and HAS-CALL, JJ.

Mayo W. Hazeltine, for appellants.

Holland, Trenholm & Whealton, for respondent.

The action is for labor and services and for materials furnished. It is admitted that the work was done and the materials furnished, but the distinct defense is that the liability was not one for the defendants individually, but was against the executors of one Benjamin Richardson, deceased. This issue was distinctly presented to the jury upon all the evidence, and no exception was taken by the defendants to the whole or any part of the charge. With the province of the jury in determining disputed questions of fact the court on appeal is not inclined to interfere, unless it distinctly appears that the result was reached through prejudice or undue influence or willful disregard of the evidence adduced on the trial; and, as no such element appears by the record, we think the judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs. All concur.