Clement v. Congress Spring Co.

case was whether plaintiff was employed by defendant for one year from March 1,1892, as he claimed, or whether such employment ceased on October 1,1892, when he was discharged by defendant. On this question there were only two witnesses sworn, the plaintiff in his own behalf and Mr. Sheehan on the part of defendant. The testimony of the two witnesses was in direct conflict. Plaintiff swore positively that he was hired for one year from March 1, 1892, while Mr. Sheehan testified that his employment ceased on October first. "We are unable to see how we could properly reverse the judgment on the facts. The defendant made no motion for a nonsuit or for a direction for a verdict, but acquiesced in the submission of the case to the jury. In Perk v. Bell ( 7 Hun, 454 ), Learned, J., says: u The failure of a defendant to move for a nonsuit, or to aslc the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to a jury, and the defendant is thereby precluded from moving to set aside the verdict as against evidence.” (See, also, Barrett v. Third Ave. R. R. Co. 45 N. Y. 628 , 632.) Had tho defendant, however, moved for a nonsuit at the close of the trial or for a direction of a verdict, this was not one of thoso cases where the trial judge could properly have withdrawn the case from the iury. It is only where there is, a decided preponderance of evidence in favor of one of the parties that a court is justified in directing a verdict or granting a motion for nonsuit. (See opinion of Potter, J., in Mores v. Sherrill, 63 Barb. 21 .) Under the doctrine laid down in the case cited, and many other kindred cases, it was the province of the jury to pass upon the credibility of the two witnesses sworn in the case, there being no decided preponderance of evidence either way. "VVe nave examined tho exceptions to the rulings of the court below taken on the trial and think none of them require a discussion or a reversal of the judgment. The judgment should be affirmed, with costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.