Charles v. Prentice — 52 N.Y. St. Rep. 294

Majority

p. 294

Herbert H. Charles, Resp't, v. William W. Prentice, App'lt.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1893.)

Headnote

Verdict—Appeal.

Where the question involved was purely one of fact, and was submitted to the jury in a charge to which no exception was taken, the verdict will not be disturbed on appeal.

Appeal by the defendant, William W. Prentice, from a judgment of the county court of Wyoming county, entered on the verdict of a jury, January 13, 1892, in a case appealed for a new trial to that court by the defendant from a judgment of a justice of the peace.

F. W. Brown, for app'lt; Elmer E. Charles, for resp't.

The action is brought to recover the value for labor performed and materials furnished by the plaintiff to the defendant in drilling a well for the latter; and also for the value of a pump sold by the plaintiff to the defendant, and for labor in setting the same.

The defense alleged, as part of the agreement between the parties, that the well should be drilled to a sufficient depth to obtain plenty of good and wholesome drinking water for the defendant’s domestic purposes, and for such uses as a well is ordinarily put upon a farm, and that in case of failure thereof the plaintiff was to have nothing for his services, or for the materials furnished in drilling the well. Thence follows an averment that

p. 295

the plaintiff failed to fulfill his part of the contract and did not drill such a well as was called for by the agreement, and that the well did not produce plenty of good and wholesome drinking water for the defendant’s use.

The case was tried before the county judge of Wyoming county, and a jury, and all evidence adducible upon the questions in issue appears to have been given. The charge of the learned judge stated the issues between the parties and the questions for the jury with distinctness and precision, and every question that was properly cognizable by the jury was turned over to them for their decision. No exception was made to any portion of his charge, and no request by either party to add to it anything which the learned judge had failed to mention to the jury. It was, therefore, purely a question of fact and the determination of the jury, which was in favor of the plaintiff, in a verdict of $145.20, cannot be disturbed by us upon this appeal. Some exceptions to the rejection of evidence appear in the record, but they are wholly without merit and worthy of no comment.

Judgment appealed from should be affirmed.

Judgment of county court of Wyoming county appealed from affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.