Tinkham v. Thomas — 34 N.Y. Super. Ct. 236

Majority

p. 236

FRANK J. TINKHAM, et al., Plaintiffs and Appellants v. ANDREW J. THOMAS, Defendant and Respondent.

Headnote

After a jury had been, charged by the court, and were leaving the jury box, it is too late for counsel to request the court to make any specific charge in the case.

Bequests to charge should be presented to the court in the hearing of the opposing counsel, and before the jury are leaving the jury box, and should not be handed up to the court in a paper writing as the jury were leaving.

In this case the judge refused to entertain or consider the proposed requests to charge, and it was the exercise of a proper discretion in the premises and under the circumstances.

Before McCunn, Curtis and Sedgwick, JJ.

Decided March 2, 1872.

Appeal from a judgment.

This action is brought to recover three thousand dollars damages claimed to have been sustained by reason of certain false and fraudulent representations alleged to have been made' by the respondents to the appellants, by which the latter were induced to purchase the stock and fixtures of a cigar stand in the premises No. 585 Broadway, New York, paying therefor one thousand, and twenty-four dollars,

p. 237

and also to take a lease of the stand from tlie respondent for one year at the rent of two thousand five hum-/ dred dollars per annum, payable weekly.

The complaint alleged that the defendant falsely and fraudulently represented to the plaintiffs that the business as previously conducted by defendant was profitable, and that the sales averaged forty dollars a day, and would continue to average not less than forty dollars a day as conducted by the plaintiffs. These allegations were denied by the answer.

The issues raised by the pleadings were -tried before the Hon. James C. Speuoer and a jury, December 21, 1870, and a verdict rendered for the defendants. The plaintiffs’ counsel moved for a new trial on the minutes, which motion was denied. The case comes before the general term on appeal from the order denying the motion for a new trial, and from the judgment entered in favor of the defendant.

Samuel H. Randall, for appellants.

Charles H. Bailey, attorney for respondent.

A. Phillips, of counsel.

The appellant seeks a new trial upon the ground that the verdict is against evidence, and that the court erred in denying the motion for it made upon the minutes. The testimony of the plaintiff, as to the making of the alleged false representations, is contradicted by other testimony, and the question as to whether they were made or not was fairly submitted to the jury, who found for the defendant. It was their exclusive province to determine this question; and an examination of the evidence in the case shows no reason why their verdict should be disturbed. The rulings of the judge, during the progress of the trial, to which the appellants excepted, were

p. 238

correct. The entries made by the witness from the statement of the clerk were properly excluded, and the clerk was subsequently called and testified for the appellants.

After the jury had been charged by the court, and were leaving the jury box, the appellants’ counsel handed a paper to the judge, which he alleged contained specific requests on the part of the plaintiffs to charge the jury. The judge refused to receive the paper, or to receive any requests to charge the jury, or to recall the jury for that purpose, some of them having left the jury box and were near the door, although all of them were in the court room,—holding that the counsel should have presented any requests to charge before that time; to which ruling and refusals the appellants’" counsel excepted.

There seems to be a manifest propriety that requests to charge should be presented to the court in the hearing of the opposing counsel, and before the jury are leaving the box, and not handed up in a paper after they are leaving. The nature of these requests, or what they were, is not disclosed by the case, and there appears to be no sufficient reason for interfering with the exercise of the discretion of the court under the circumstances.

The motion for a new trial should be denied, and the judgment of the court below should be affirmed, with costs.