Jessup v. McGarry

7 N.Y.S. 751, 5 Silv. Sup. 274, 28 N.Y. St. Rep. 85, 55 Hun 605, 1889 N.Y. Misc. LEXIS 1285

• Court: New York Supreme Court
• Decided: December 10, 1889
• Status: Published

Opinion

Pratt, J.

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