Charles v. Prentice — 75 N.Y. Sup. Ct. 229

Majority

p. 229

Herbert H. Charles, Respondent, v. William W. Prentice, Appellant.

Headnote

Case presenting a question of fact onty — 'determination of the jury not disturbed.

When, on a trial before the court and jury in a County Court, on appeal from a Justice’s Court, Of an action brought to recover the value of labor and materials, all evidence adducible upon the question in issue is given, and the charge states the issues between the parties with distinctness and precision, - and every question properly cognizable by the jury is turned over to them for their decision, and no exception is made to any portion of the charge, nor any request to add to it, the case presents purely a question Of fact, and in the absence of any meritorious exception to the admission or rejection of evidence, the determination of the jury will not be disturbed by the General Term upon an appeal from a judgment entered on the verdict.

p. 230

Appeal by tbe defendant, "William W. Prentice, from a judgment of the County Court of Wyoming county, entered in the office of the clerk of Wyoming county on the verdict of a jury January 13, 1892, in a case taken to that court on an appeal for a new trial by the defendant, from a judgment of a justice of the peace of the town of Warsaw.

F. W. Brown, for the appellant.

Elmer E. Charles, for the respondent.

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 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 addueible upon the questions in issue appears to .have been given. The cljarge 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

p. 231

appear in the record, but they are wholly without merit and am Worthy of no comment.

Judgment appealed from should be affirmed.

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

Judgment of the County Court of Wyoming county appealed from affirmed, with costs.