Halpin v. Finch — 24 N.Y. St. Rep. 884

Majority

p. 884

Christopher Halpin, Resp’t, v. Hotchkiss S. Finch, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 22, 1889.)

Headnote

•Contract—Of employment—When verdict of jury not disturbed.

In an action to recover for personal services rendered by plaintiff under

p. 885

an alleged employment of him by defendant, there was a conflict of testimony as to how plaintiff was to obtain his compensation, and the question was submitted to the jury under an impartial charge to which no exception in defendant’s behalf was taken. Held, that the jury having found for plaintiff, the judgment entered therein will not be disturbed.

Appeal by the defendant from a judgment entered in Tates county, upon a verdict of a jury at the circuit, and also upon an order denying a motion for a new trial.

Calvin J. Huson, for resp’t; John H. Young, for app’lt.

This action was brought to recover for personal services of the plaintiff under an alleged employment of him by the defendant, to take the care of and to run a grist mill.

No question is presented by this record, but that the plaintiff actually rendered the services alleged, and that they were reasonably worth the amount for which the verdict was rendered, nor is it seriously disputed that the defendant himself, though not having the legal title to the premises, was the person who secured the plaintiff’s services by a contract of some sort. It is claimed in his behalf, and such is his testimony, corroborated in part, at least, by the testimony of one, French, that the plaintiff was to obtain his compensation solely out of the avails of the milling business.

At one time he did conduct the same mill under a like agreement with Mr. French, who was the owner of the premises at that time. Under the plaintiff’s evidence, however, supported as it is to some extent by the letters written by the defendant bimself, and by circumstances, the case presented a question solely for the consideration of the jury. The case was properly laid befoi’e them by the learned judge at the circuit, and no exception appears in behalf of the defendant, either to the charge or to any ruling, which requires any consideration from us. There is not that clear preponderance of evidence in behalf of either side which would justify us in interfering with the verdict, particularly as the judge at the circuit, with the benefit and advantage of having the several witnesses before him, has, upon a motion, denied such relief to the appellant.

The judgment should be affirmed, with costs.

All concur.