Newman v. Wilson — 60 N.Y. St. Rep. 243

Majority

p. 243

Simon Newman et al., App’lts, v. John Wilson et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 14, 1894.)

Headnote

Appeal—Conflicting e vide sob.

Where the charge is fair, clear and unexceptionable, a verdict upon conflicting evidence is conclusive.

Appeal from a judgment in favor of defendant on a counterclaim.

Benjamin Patterson and George Bell, for app’lts; Byram L. Winters, for resp’ts.

This is an appeal from a judgment entered on a verdict of a jury, and from an order denying a new trial There seems to have been no exception taken, however, to the denial of the motion for a new trial; but that is immaterial, as there was no merit in the motion, and we should affirm the order even if there had been an exception. The action was for the price of vinegar sold and delivered to defendants, which they used in their business, and the jury allowed the plaintiffs the price of it in this verdict. The de»

p. 244

fendants set up a counterclaim for damages for a breach of warranty, which was sustained by the jury, and judgment was thereafter rendered in favor of the defendants. The evidence was conflicting, and the charge was fair, clear, and unexceptionáble, and, under such circumstances, the verdict is conclusive. There is nothing in the case to show that the verdict was not an intelligent and honest exercise of judgment upon all the facts and circumstances of the «case.

'The appellants complain of the amount of the verdict, in that defendants are given double damages. The answer to that is that such is not the fact. With the plaintiffs’ consent the judge made a list of the items of the defendants’ claim for damages, and gave it to the jury as they went out to deliberate upon the verdict, and they returned a verdict for a sum less than that claimed by the defendants. If the list was incorrect, or if it contained any claim which ought not to have-been submitted to the jury, the appellants should have had it corrected, or taken an exception.

As to the warranty and the rule of damages, the judge charged according to well-settled rules of law, to which no exception was taken. '

Judgment affirmed, with costs.