Oliver v. Moore — 39 N.Y. St. Rep. 500

Majority

p. 500

Margaret A. Oliver, Resp’t, v. William L. Moore, App’lt.

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

Appeal—Review—-Verdict supported bt evidence.

When the verdict of a jury is fairly supported by the testimony, it will not be disturbed on appeal.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered after a trial at circuit, and also from an order denying a motion for a new trial.

J. Noble Hayes, for resp’t; H. Kettell, for app’lt.

—This is the third time that this case has come before the general term. Upon the original appeal the questions of law were fully examined and decided in the plaintiff’s favor ( 53 Hun, 473 ; 25 N. Y. State Rep., 37). The defendant’s exceptions were then overruled, but a new trial was ordered upon the plaintiff’s exceptions, for the reason that her claim had been erroneously reduced by the rulings of the justice who presided at the first trial. Upon the second trial the plaintiff again recovered, but the judgment rendered upon the verdict was set aside and a new trial ordered, 35 N. Y. State Rep., 131, for the reason that the general term found it impossible to reconcile the verdict with any theory which had any support in the evidence. Upon the third trial now before us for review, the jury were more careful with their figures, and we find no difficulty in reconciling their verdict with the facts as they appear in the record.

p. 501

The real question was, what deduction should be made from the price stipulated in the contract by reason of the saving to the plaintiff which resulted frpm Miss Gross’s death. The appellant attacks the plaintiff’s testimony and insists that the jury cut down arbitrarily the amount for which the defendant was entitled to credit. We have examined the testimony and see no substantial justification for this contention. The jury accepted the plaintiff’s testimony, as they had a right to do, and we cannot follow the appellant in his strained criticism upon that lady’s position.

We think this controversy has gone quite far enough, and that the contest upon the defendant’s part has now degenerated into a petty speculation as to the cost of the food which a sick woman might have consumed daily. The reduction allowed by the jury was fair and reasonable and it was fully supported by the testimony. We have, in fact, no doubt that such reduction equalled any actual saving to the plaintff caused by Miss Gross’s death.

The judgment and order appealed from should, therefore, be affirmed, with costs.

Van Brunt, Oh. J., and Patterson, J., concur.