Murphy v. Drew

113 A.D. 795

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1900
• Status: Published

Opinions

Hooker, J.:

This is an appeal from a judgment of the Orange County Court, reversing a judgment of the justice of the .peace. entered after the verdict of a jury in favor of the plaintiff. The evidence was conflicting. There was sufficient evidence to support the verdict of the jury to the effect that the plaintiff was the owner of a colt; that it.was in poor condition; that at the defendant’s suggestion the plaintiff allowed him to pasture it, the agreement at the time being that the'plaintiff was to pay the reasonable value of this service; that after the colt had been in defendant’s possession about six months a demand was made for it on behalf of the plaintiff, accompanied by a tender of twenty-five dollars to pay the reasonable value of defendant’s services for its care, but that defendant refused to deliver up possession. Plaintiff introduced evidence tending to show that the value of the' colt at the time of defendant’s refusal to deliver was between fifty and' sixty dollars. , -

The defendant denied the agreement to take the colt to pasture, and swore that the colt was a gift to him from the plaintiff. For the evident purpose, however, of meeting a possible situation where' the jury might believe the plaintiff’s testimony, he offered evidence, which was received, tending to show the value of the care of thé colt, and also introduced' evidence tending'to show that the valúe of the colt was little or nothing. The jury evidently credited the plaintiff’s story, and found that there was no gift. It rendered a verdict for thirty-five dollars in favor of the plaintiff, which would seem to indicate that it made the defendant an allowance for pasturage. The learned County Court in reversing the judgment said that “ The case was tried and submitted to the jury upon the theory that the facts alleged in the answer were not available against the claim of the plaintiff, because of his infancy. I think this was a mistaken view of the rights of the parties and that the judgment should be reversed.” There is nothing in the record as it is submitted to' this court to indicate that the case was either, tried or submitted to the jury on any such theory. The defendant was allowed to mid did prove by his own evidence and that of a stableman what the value of the pasturage was, and this evidence was in the case and proper to - be considered by. the jury in its deliberations. The justice did not charge the jury, and the presumption is that it considered this evidence as well as the other evidence in the case.' - - '

We have examined the rulings ad verse to the defendant upon the admission of evidence, with the result that we are of the opinion that no reversible error was committed by him in that respect.

The judgment of the County Court must, therefore, be reversed and the judgment of the justice of the peace affirmed, with costs in the County Court and in this court to the appellant.

Woodward and Rich, JJ., concurred; Gaynor, J., read for affirmance, with whom Jenks, J., concurred.