Weigmann v. Sire — 43 N.Y. St. Rep. 27

Majority

p. 27

Louis P. Weigmann, Resp’t, v. Benjamin Sire et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Verdict—Conflicting evidence.

In an action for work performed under contracts, by plaintiff’s assignor,

p. 28

the defense was breach of contract and payment. The evidence was conflicting and irreconcilable, and the case was submitted to the jury under a proper charge. Held, that their verdict was final on the questions of fact..

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

The action is brought to recover moneys alleged to be due plaintiff for work, labor and services, and materials furnished by-plaintiff’s assignor in constructing and erecting fire-escapes on the premises of the defendants. The complaint sets forth three causes-of action. The three defendants answered separately. The second cause of action is for seventy-five dollars, and the defense-interposed was a tender of that amount. The third cause of action is for fifty-five dollars, and the answer was breach of contract in failing to complete the work. The first cause of action is for $1,146, and the defense pleaded was failure to comply with, the contract in constructing the fire-escapes and payment by defendants 'for such incomplete work before commencement of the action. The defense to the second cause of action was conceded by plaintiff. There was a conflict of testimony with respect to-the third cause of action.

Albert I. Sire, for app’lts; H. M. Gescheidt, for resp’t.

The record shows nothing but a question of fact. The complaint is based upon facts which showed that one Catharine H. Mittnacht rendered services and furnished material on three separate premises for the defendant The complaint claims $1,146 for one contract, $75 for another, and $55 for the third. The answer states that the contract for which $1,146 is claimed was $960, which was paid. That the contractor failed to execute the $55 contract. The $75 contract is denied. The plaintiff is the owner of the several claims by assignment fromCatharine H. Mittnacht. The parties differed irreconcilably. The-plaintiff’s witness gave proof tending to show that the whole claim in the complaint is due. The defendants gave evidence to the contrary, and in support of the answer. Proof was given of a $750 payment by defendants to Miss Mittnacht, and she gave positive proof that no such payment was ever made. Proof was-given in respect to the performance of the $75 and the $55 items.

The whole case with its many contradictions was sent to the jury under a clear charge in respect to the issues on the several items, and as to the payment, and as to the performance of smaller items. The jury have passed upon the questions. The conflict is so great, and the evidence is so strong on each side, with no-such preponderating force to either side, that the case falls within the general rule that the verdict of the jury is final upon a disputed question of fact.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.