Lewin v. Moody

131 Misc. 833, 228 N.Y.S. 281, 1928 N.Y. Misc. LEXIS 803

Opinion

Per Curiam.

Plaintiff sued for legal services. Respondents contend that the services were rendered to and on account of a corporation in which they were interested. The most that can be said in support of the direction of the verdict is that different inferences might be drawn from plaintiff’s testimony. In such a case the most favorable inference must be accorded to plaintiff on appeal. (Veazey v. Allen, 173 N. Y. 359; Kirwan v. American Lithographic Co., 197 id. 413.) The drawing of inferences under these circumstances, however, is distinctly the function of a jury. (Alsens A. P. C. Works v. Degnon Contracting Co., 222 N. Y. 34.) Even if it could properly be claimed that parts of plaintiff’s testimony were inconsistent with other parts the ascertainment of the truth is the function of the jury. (Supple v. International R. Co., 208 App. Div. 547; Ruppert v. Singhi, 212 id. 630; Gelb v. Third Ave. R. Co., 123 Misc. 136; Illich v. Liebers, 127 id. 148. See, also, Tierney v. Boston El. R. Co., 216 Mass. 283, 286; Ochs v. Woods, 221 N. Y. 335.)

Judgment reversed and a new trial granted, with costs to appellant to abide the event.

All concur; present, Bijur, Lydon and Levy, JJ.