Light v. Fishel — 67 N.Y.S. 1110

Majority

p. 1110

LIGHT et al. v. FISHEL.

(City Court of New York, General Term.

January 3, 1901.)

Headnote

Appeal—Verdict—Weight op Evidence—Reversal.

An order granting a new trial on the ground that the verdict is against the weight of evidence will not he reversed on appeal in the absence of a showing that the granting of the same was an abuse of the trial court’s discretion. •

Appeal from special term.

p. 1111

Action by Benjamin Light and another against Jacob Fishel. From an order setting aside a verdict in favor of the plaintiffs and granting a new trial, plaintiffs appeal.

Affirmed.

Argued before FITZSIMONS, C. J., and O’DWYER, J.

J. L. Weinberg, for appellants.

A. Stem, for respondent.

Upon the trial the jury rendered a verdict in favor of plaintiffs. Upon defendant’s motion the trial justice set aside the verdict as against the weight of evidence, and granted a new trial. From said order this appeal is taken.

This order, being a discretionary one, should be affirmed, unless it clearly appears that the granting of the same was an abuse of the power vested in the trial justice to grant a new trial if, in his sound and unvaried opinion, the interests of justice so required. We have carefully reviewed the evidence for the purpose of determining whether there was such an abuse of discretion, and after such examination we think that the order was wisely made. Besides, the trial justice had the advantage of hearing the witnesses testify, saw their demeanor upon the stand, and their manner of giving evidence. Their candor and sincerity, as well as their evasion or duplicity, must have been observed by him. These helps, in conjunction with his large experience in weighing evidence, should not be disregarded by us, as we would have to do if we reversed the order in question. All these considerations induce us to believe that the order was right, and should be affirmed; and it is so ordered.