Scheider v. Corby

Headnote

Motion for new trial — denied, although the verdict for the plaintiffs did not give plaintiffs all their claim, nor all that was due them, if the,defe7idarit’s theory-was rejected.

Appeal by the defendant from a judgment in .favor of the plaintiffs, entered upon a verdict of a jury, and from an order denying a -motion for a new trial made upon the minutes of the justice, before whom the action was tried.

This action was brought to recover the balance claimed to be unpaid on an account for goods sold. The answer disputed the amount due, by contesting the accuracy of three different items, alleging the balance to be only the sum of eighty-four dollars and twelve cents, and as to that it relied upon a tender.

After considering other objections, the court at General Term said: “ The jury, while they rendered a verdict for more than the amount tendered, did not give the plaintiffs all they claim, nor all their evidence tended to show to be owing, if the theory of the defendant was rejected. For that reason the motion was made to set aside the verdict. A similar result was obtained in the case of Wolf v. Goodhue Fire Insurance Go. ( 43 Barb., 400 ). But the court held that the verdict on that account could not be set aside, and the decision made was afterwards affirmed by the Court of Appeals. ( 41 N. Y., 620 .) This authority disposes of the same point made on behalf of the defendant in this case.”