Regester v. Edward Barr Co. — 39 N.Y. St. Rep. 138

Majority

p. 138

Samuel W. Regester et al., Resp’ts, v. The Edward Barr Company, Limited, App’lt.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

Appeal—Review—Excessive verdict.

The issue whether a pipe delivered was the pipe which the defendant had agreed to buy and the plaintiff to sell was submitted to the jury on three different theories, without exception to the charge, and no request to charge otherwise. Held, that the jury having found a verdict in accordance with one of the theories submitted, it is not open to the objection that it is excessive, and will not be disturbed.

Appeal by defendant from a judgment in favor of the plaintiffs entered upon the verdict of a jury, and from order denying defendant's motion for a new trial.

Billings & Cardozo, for app’lt; Black & King, for resp’ts.

—The contract as to the iron soil pipe in question is to be found in the correspondence between the parties. On the trial the issue whether the pipe delivered was the pipe which the defendant had agreed to buy and the plaintiffs had agreed to sell was sharply litigated and submitted to the jury on three different theories. There was no exception to the charge and no request made to charge otherwise. Nor had the defendant asked the court to dismiss the complaint or to direct a verdict for the defendant. The jury having found a verdict in accordance with one of the theories submitted, the verdict is not open to the objection that it is excessive. Upon the whole case I fail to perceive how the verdict can be disturbed.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., concurs.