Larkin v. Sullivan — 61 N.Y. St. Rep. 112

Majority

p. 112

John Larkin, Resp’t, v. William Sullivan, as President, etc., App’lt.

(New York Common Pleas, General Term,

Filed August 1, 1894.)

Headnote

Appeal—Verdict.

Verdict will not be set aside, where there is enough evidence to sustain it, in the absence of sympathy, passion, prejudice oí hasty action on the part of the jury.

Appeal from a judgment rendered in the district court of the city of New York for the fifth judicial district.

Samuel Mullen, for app’lt; Abraham H. Sarasohn, for resp’t.

This action was brought to recover the sum of $75 which plaintiff claimed as a funeral benefit by reason of the death of his wife, due to him by the defendant association, because he was a financial member of the district lodge. The Case was tried by the justice with a jury. The defense was, twofold, first that the plaintiff was over forty years of age when he joined the lodge, and second that he was not a member in good standing at the time because he was in arrears for dues for a period of three months prior to the death of his wife. The plaintiff’s testimony in the case was somewhat contradictory, but on the other hand the defendant’s testimony was vague and indefinite. There was enough evidence offered by the plaintiff to sustain his contention if believed by the jury, and their verdict shows they did believe him. Neither of the questions litigated before them were of a nature to induce sympathy on one side, or passion, prejudice or hasty action on the other. We therefore do not think the verdict should be disturbed. As far as the record shows, no exceptions were taken during the course of the trial, and none were argued before us. The judgment should therefore be affirmed with costs. Gtegerich, J., concurs.