Bradley Fertilizer Co. v. South Publishing Co.

14 N.Y.S. 917, 39 N.Y. St. Rep. 218, 1891 N.Y. Misc. LEXIS 2565

• Court: City of New York Municipal Court
• Decided: June 19, 1891
• Status: Published

Opinion

McGown, J.

The issues raised by the pleadings were issues of fact only. After the closing of the testimony, defendant’s counsel asked for a direction of a verdict for the defendant, which motion was denied. Plaintiff’s counsel thereupon asked for a direction of a verdict in favor of the plaintiff, which motion was granted, and to which rulings defendant excepted. No motion was made by defendant’s counsel to go to the jury on any question of fact. Both parties having requested the court to direct a verdict, they themselves conferred upon the trial justice all the authority over the questions o'f fact which the jury would have otherwise had, including the right to discredit the testimony of any of the witnesses, unless corroborated by other testimony. Kearney v. Mayor, etc., 92 N. Y. 621; Elwood v. Telegraph Co., 45 N. Y. 553; Sipple v. State, 99 N. Y. 290, 1 N. E. Rep. 892, and 3 N. E. Rep. 657. There was no error on the part of the trial justice in' directing the verdict, and we think he was justified by the evidence in directing the verdict. We have examined the several exception's taken by defendant’s counsel to the ruling of the trial justice, and we. do not' think there .is .any merit in any of them. The amendments allowed were in the discretion of the trial justice, and they did not change substantially the claim or defense, nor did they affect the substantial rights of the defendant; and it was his duty, under the circumstances, to conform the pleadings and other proceedings to the facts proved. Judgment appealed from must be affirmed, with costs to respondent.