Jessup v. McGarry — 5 Silv. Sup. 274

Majority

p. 274

Charles L. Jessup, Respondent, v. John McGarry, Appellant.

• Supreme Court, Second Department, General Term,

December 9, 1889.

Headnote

Appeal. Verdict.—Where the case involves only questions of fact and is clearly and fairly submitted to the jury upon conflicting evidence, and no exception is taken thereto, the verdict will not be disturbed.

Appeal from judgment entered on verdict of a jury and from order denying motion for a new trial.

Action for milk sold and delivered. Defense, that the milk was not sold and delivered to defendant, but to one Von Winkle.

H. T. Marston, for appellant.

Alton J. Vail, for respondent,

This case involves only questions of fact as the case was clearly and fairly submitted to the jury by the

p. 275

judge’s charge and no exception taken thereto. At folios 20 and 28 of the case it appears that plaintiff testified to a conversation with defendant wherein defendant agreed if plaintiff would serve his milk to Von Winkle, he, McGarry, would send plaintiff a check for the amount.

If this was the agreement, and the jury must have so found, then McGarry was the original debtor and liable in this action. This view is corroborated by Mr. Woodruff at folio 50 of the case.

The conversation as detailed by these persons is denied -by defendant and Mr. Von Winkle, and their testimony is somewhat corroborated by the fact that bills were made out to Mr. Von Winkle, and an effort was made by plaintiff to have defendant sign an agreement as surety or guarantor for the payment of the debt, but after all it was a question of fact to be determined by the jury, and the verdict is not so manifestly against the weight of evidence as to require it should be set aside.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.