Costello v. Herbst

16 Misc. 687, 38 N.Y.S. 1123

Opinion

Fitzsimons, J.

This action was tried upon the theory, on plaintiff’s behalf, that she sold and delivered, conditionally, certain goods to the defendant; that is to say, that he would pay a certain price.therefor; upon his failure to do so that he would return such goods to the -plaintiff.

Defendant contended that he ivas a mere consignee of-such goods, and.before the plaintiff was entitled to a return thereof she would have to pay defendant all his reasonable charges and liens against the same. •' ■- . • .

Upon these conflicting contentions the case went to the jury and was decided in favor of the plaintiff. .

The defendant’s main argument is that such' verdict was ¿gainst the weight 'of evidence. - '

We have carefully examined the record and do-not agree'with him. While there is considerable evidence in defendant’s behalf tending to Sustain his claim, and which would have justified the jury in rendering a verdict in his behalf, yet on plaintiff’s side . there is certainly evidence enough to justify a jury in finding in plaintiff’s favor, which they did in this instance.

It was the duty and function of the jury to determine between these conflicting theories, and their conclusion should not be disturbed' unless it is apparent that their verdict is the result "of passion, prejudice, sympathy or .some' such consideration, which is ■ not the case here.

The mere fact that we, if We had tried the case, might -have decided in defendant’s favor would not justify us in.reviewing the finding of the jury, .' • .

We think the trial justice in this instance was right in allowing plaintiff to show the whole course of dealings from their commencement between the parties hereto, because it is apparent that only in that way1 could the jury determine what the agreement between them was concerning the goods delivered.

In that- view of the-question it was evidently the duty of the trial justice to allow such evidence and he was right in admitting . the same. • . ' ..'

In our judgment no error was committed and the verdict must be sustained, with costs.

.Vast Wvck, Oh. I., and McCarthy, J., concur.

Judgment affirmed, with costs,. ■