Sharkey v. Torrilhon

Headnote

Practice — JNew 1/rial — motion for on ground that verdict is against the weight of evidence — when granted on judge's minutes — Weight of evidence.

Appeal from a judgment in favor of the plaintiff recovered on a verdict, and from an order denying a motion of the defendant for a new trial upon the minutes of the court, on the ground that the verdict of the jury was against the weight of evidence.

The action was brought to enforce the specific performance of a contract for the purchase of certain real estate, provided such performance could be • decreed; and otherwise for the recovery of damages for a breach of the contract. The jury found a verdict for the plaintiff, and assessed his damages at $7,000. Whereupon the defendant moved for a new trial upon the minutes, upon the ground that the verdict was against the weight of evidence. The motion was denied, and the defendant appealed.

The court held, that a verdict against the weight of evidence, although not within the express terms used in section 264 of the Code, declaring that the judge may entertain the motion upon exception, as for insufficient evidence or for excessive damages, yet it is clearly within its intention and spirit. A verdict against the clear weight of evidence would not be supported by sufficient evidence. The undoubted intention of the legislature was to provide an expeditious and inexpensive proceeding by means of which the errors of jurors could be readily, and without any formal proceedings, corrected by the judge having the case before him upon his minutes. (Citing Algeo v. Duncan, 39 N. Y., 313 .)

The court further held, that the evidence in this case was insufficient to support the verdict of the jury.