Bradley Fertilizer Co. v. South Publishing Co. — 39 N.Y. St. Rep. 218

Majority

p. 218

The Bradley Fertilizer Company, Resp’t, v. The South Publishing Company, App’lt.

(City Court of New York, General Term,

Filed June 19, 1891.)

Headnote

Trial—Request by both parties to direct verdict.

Where hoth parties request the court to direct a verdict, they confer upon the trial justice all the authority over the questions of fact which the jury would have otherwise had.

This action was brought to recover abalance of account alleged to be due plaintiff for goods sold and delivered to the defendant. The defense set up was a denial of the sale and delivery to defendant of the goods, etc., as alleged in the complaint, and that the defendant was not an incorporated company at the time of the alleged sale.

Judgment was entered on the second day of February, 1891, upon the verdict of a jury, by direction of the court, in favor of

p. 219

the plaintiff, for the sum of $377.92. Defendant appeals from the judgment,

Herbert H Gibbs, for app’lt; George Walton Green, for resp’t.

—The issues raised by the pleadings were issues of fact only.

After the closing of the testimony defendant’s counsel asked for a direction of a verdict for the defendant, which motion was denied.

Plaintiff’s counsel thereupon asked for a direction of a verdict in favor of the plaintiff, which motion was granted and to which rulings defendant excepted.

JSTo motion was made by defendant’s counsel to go to the jury on any question of fact

Both parties having requested the court to direct a verdict, they themselves conferred upon the trial justice all the authority over the questions of fact which the jury would have otherwise had, including the right to discredit the testimony of any of the witnesses unless corroborated by other testimony. Kearney v. The Mayor, etc., 92 N. Y., 621 ; Elwood v. Western Union Tel. Co., 45 id., 553; Sipple v. The State, 99 id., 290.

There was no error on the part of the trial justice in directing the verdict,- and we think he was justified by the evidence in directing the verdict.

We have examined the several exceptions taken by defendant’s counsel to the ruling of the trial justice, and we do not think there is any merit in either of them. The amendments allowed were in the discretion of the trial j ustice, and they did not change substantially the claim or defense, nor did they affect th'e substantial rights of the defendant, and it was his duty, under the circumstances, to conform the pleadings and other proceedings to the facts proved.

Judgment appealed from must be affirmed, with costs to respondent

McCarthy, J., concurs.