Walbridge v. Graham — 49 N.Y. St. Rep. 879

Majority

p. 879

George O. Walbridge et al., Resp’ts, v. James F. Graham, App’lt.

(City Court of New York, General Term,

Filed December 7, 1892.)

Headnote

Verdict—Weight of evidence.

Where the witnesses on the trial consisted of the parties and one other witness on each side, and the defendant did not move for a non-suit or verdict, and took no exception to the charge, a verdict in favor of plaintiff will not he disturbed on the ground that it is against the weight of evidence.

Appeal from judgment in favor of plaintiffs, entered upon a verdict.

Brooke & Brooke, for app'lt; A. Gruber, for resp’ts.

This action was brought for goods, wares and merchandise, sold and delivered to the defendant on and between April 21, 1891, and October 31, 1891, of the value of §1,539.33, on account of which was paid the sum of §1,300, leaving due and owing to plaintiff from defendant the sum of $239.33, with interest from October 31, 1891.

The defendant, by his answer, admits as follows, to wit:

That on and between the 21st day of April, 1891, and October 31, 1891, the plaintiffs performed certain work and labor, and supplied certain material, but denies that the same was worth $1,539.33, or that that amount was agreed upon between the parties, and denies that any sums whatsoever are due on account of such goods and services, and the defendant, further answering, avers substantially to the effect that the work, services and materials furnished by the said plaintiffs were inferior to that agreed upon and contracted for.

The plaintiffs, at the trial, produced two witnesses, George O. Walbridge, one of the plaintiffs, and Patrick Flynn, an employee of the plaintiffs, and the witnesses produced for the defense were the defendant and Frank A. Kirtland. Their testimony constitutes all the evidence in the case.

The kind of goods sold to the defendant was fireplace gratings and seats, mantels, tiling and wainscoting, etc. This the plaintiffs contracted to place in in a thoroughly workmanlike and proper manner, and to furnish proper and suitable materials, and whether

p. 880

or not such contract was substantially complied with was the only issue presented at the trial.

This case involved a question of fact, and was fairly submitted to the jury^ who rendered their verdict for the sum of $246.50.

After this verdict, the defendant’s counsel moved for a new trial, on the ground that the same was against the weight of evidence, and upon all other grounds specified in § 999 of the Code of Civil Procedure, which was denied, and exception taken.

Upon the trial, the defendant did not move the court for a non-suit, or ask the court to direct a verdict for the defendant.

No exceptions were taken to the judge’s charge.

We find no errors committed on the trial, and the judgment' should be affirmed, with costs.

Van Wyck and McGown, JJ., concur.