Osteander v. Fay

New York Court of Appeals

Osteander v. Fay

3 Abb. Ct. App. 431

DecidedSeptember 15, 1866

StatusPublished

This text of 3 Abb. Ct. App. 431 (Osteander v. Fay) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Osteander v. Fay, 3 Abb. Ct. App. 431 (N.Y. 1866).

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Opinion

By the Court.

Hukt, J.

[After stating above facts.]— ■The charge was able and discriminating. It laid down the law correctly, and submitted the questions to the jury with plainness and fairness. The transaction was a questionable one, and a jury could' appreciate it as well, and decide it as satisfactorily as the court. Under the cases of Ford v. Williams, 34 N. Y. 359; Same v. Same, 13 Id. 577, and Miller v. Lockwood, 33 Id. 393 (above), it would have been an usurpation of the functions of the jury, had the judge at the circuit assumed to decide the question of fraud, as a question of law. The same rule also is laid down in Gardner v. McEwen, 19 N. Y. 133, which is supposed by the appellant’s counsel to sustain a different doctrine. Numerous requests to charge were submitted to the judge, which were refused, and various questions were raised upon the evidence offered. Upon a careful examination of them, I see no point in which an error was committed by the judge.

Judgment should be affirmed.

All the judges concurred.

Judgment affirmed, with costs.

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By the Court.

Hukt, J.

[After stating above facts.]— ■The charge was able and discriminating. It laid down the law correctly, and submitted the questions to the jury with plainness and fairness. The transaction was a questionable one, and a jury could' appreciate it as well, and decide it as satisfactorily as the court. Under the cases of Ford v. Williams, 34 N. Y. 359; Same v. Same, 13 Id. 577, and Miller v. Lockwood, 33 Id. 393 (above), it would have been an usurpation of the functions of the jury, had the judge at the circuit assumed to decide the question of fraud, as a question of law. The same rule also is laid down in Gardner v. McEwen, 19 N. Y. 133, which is supposed by the appellant’s counsel to sustain a different doctrine. Numerous requests to charge were submitted to the judge, which were refused, and various questions were raised upon the evidence offered. Upon a careful examination of them, I see no point in which an error was committed by the judge.

Judgment should be affirmed.

All the judges concurred.

Judgment affirmed, with costs.

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3 Abb. Ct. App. 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osteander-v-fay-ny-1866.

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