People ex rel. Kunse v. Woodman — 23 N.Y. St. Rep. 88

Majority

p. 88

The People ex rel. Charles Kunse, Resp’t, v. Charles H. Woodman et al., Commissioners of Excise of the City of New York, App’lts.

(New York Common Pleas, General Term,

Filed April 1, 1889.)

Headnote

1. Evidence—Declarations of person not a party to action.

On an application for a writ of mandamus to excise commissioners, evi dence of declarations of a party alleged to be interested with relator is inadmissible, such declarations not having been made in his presence or with his knowledge, or by his agent.

2. Verdict—Ground for setting aside—Code Civ Pro.. SS 999, 1000, 2082.

It is not ground for setting a verdict aside that the jury, in answer to a question they put to the court as to whether the court would be absolutely bound by the verdict, were told that it would not be The verdict would have been reviewabie had a motion for a new trial been made.

p. 89

3. Same—Weight—Mandamus.

A verdict on an issue on an application for a writ of mandamus should not be disregarded in the absence of a motion for a new trial, when the evidence is conflicting and there is ample evidence to sustain it.

Appeal from an order of the special term, directing a mandamus to issue to compel the commissioners of excise of the city of New York to issue a license to relator. On application for the writ, defendants offered evidence of admissions by one Hillen of having an interest in the business to be carried on under the license. For opinion on former appeal see 16 N. Y. State Rep., 715.

Charles W. Dayton, for app’lts; Eugene L. Bush, for resp’t.

The jury in this proceeding has found that no person or persons other than the relator Kunse was interested or to be interested in the business to be carried on at No. 38 East Fourteenth street at the time of his making-application for a license. This verdict should not be disregarded, even if the court had the right to disregard it, because there was conflicting evidence on the question submitted, and the verdict has ample evidence to sustain it. I cannot say that I would have arrived at any different conclusion than that, reached by the jury upon the proofs before us. There was no error in any of the rulings attacked by the appellants in their briefs; evidence of the declarations of the party alleged to be interested with Kunse were properly rejected because such declarations were not made in his presence nor with his knowledge nor by his agent.

It is not ground for setting the verdict aside that the jury, in answer to a question they put to the court, as to whether this court would be absolutely bound by the verdict, were told that it would not be. They were instructed, at the request of defendants, that the verdict would unquestionably have an influence on the court. They, therefore, knowing that to be the case, rendered their verdict in the relator’s favor, and must have intended it to have the effect of influencing the court in the relator’s application for his mandamus, so that even were their verdict final on the issues submitted to them, the defendants would have not suffered by the instructions given. But the instructions were not erroneous, for if the motion for a new trial had been made by the defendants, the verdict would have been open to review by the court.

Code, §§ 2082, 997, 998. The decision of the judge who granted the mandamus, that in the absence of such a motion the verdict could not be disregarded, was also correct.

p. 90

_ The other questions in this proceeding have been already disposed of at a preceding general term.

The order should be affirmed, with costs.

Larremore, Ch. J., and Allen, J., concur.