Jacoby v. Fox

33 Misc. 767, 67 N.Y.S. 955

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1900
• Status: Published

Opinion

Per Curiam.

This is an appeal from an order of the General Term of the City Court of the city of Eew York, and from a judgment entered thereon affirming a judgment in favor of the plaintiff entered upon the verdict of a jury and affirming an order denying defendant’s motion for a new trial.

It has frequently been held that on appeals of this nature, this court cannot consider the weight of evidence, and that if there is any competent evidence which sustained the finding of the jury the order of the General Term of the City Court must be affirmed. An examination of the case shows that there is evidence which, if believed by the jury, warranted it in finding for the plaintiff. ETone of the exceptions were well taken. The letter offered in evidence by the plaintiff tended to contradict the defendant’s testimony, -and, therefore, was admissible. The evidence excluded at folio 92 was not excepted to. The exception at folio 86 was not well taken; the question asked had no bearing upon the case. The exception to the charge was not well taken. The trial judge in effect told the jury that if the plaintiff was insolent towards his employer, or if he refused to obey his employer, he was not entitled to recover. This was a correct exposition of the law in this case.

Judgment and order appealed from affirmed, with costs.

Present: Tbuax, P. J., Scott and Dugbo, JJ.

Judgment and order affirmed, with costs.