People ex rel. Peck v. Board of Police of the Metropolitan Police District

35 Barb. 651, 1861 N.Y. App. Div. LEXIS 194

Opinion

By the Court, Mullin, J.

In the case of Sanrahan

(a) we held that it was competent for the jury, on the trial of issues in mandamus cases, to find a general verdict, and that the court would give effect to it if necessary by applying it to the issues separately. If we were right in thus holding, the verdict in these cases is a valid one. And as no question arises on the effect of the evidence, or the proceedings on the trial, there is enough in the papers before us to enable the court to dispose of the question arising on this appeal.

From the fact that the court directed the jury to render the verdict, we must presume it, in the absence of evidence to the contrary, to have been rightly rendered. When there is no evidence upon an issue before a jury, or the weight of evidence is so decidedly in favor of one side that the court would set aside the verdict as against the evidence, if rendered, it is the duty of the judge to direct the jury what verdict to render; and there is no statute or practice,, nor any thing in the nature of the proceeding by mandamus, which takes away from the court the right, in such cases, to direct a verdict.

But as a majority of the court has held that a finding in favor of the defendants, of the several issues sent to the jury in these cases for trial, does not bar the relator from, having a peremptory writ, we must give effect to that decision, in this case, by reversing the order of the special term, and ordering the issuing of a peremptory writ.

Clerke, Mallun and Leonard, Justices.]

Ante, p. 644.