Rosenblatt v. Heymann

26 Misc. 861, 56 N.Y.S. 378

• Court: City of New York Municipal Court
• Decided: March 15, 1899
• Status: Published

Opinion

Cohlaet, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendants for goods sold and delivered.

The action was brought to recover the price of certain goods alleged to have been sold to the defendants and the answer was a general denial.

The evidence upon the trial was conflicting, as to what were the precise terms of the contract, namely, whether there was an actual sale and delivery to the amount stated, or whether only a portion of the goods charged to the defendants were actually purchased by them, and upon this conflict the case was submitted to the jury by the trial judge, on a charge which was eminently fair to the defendants, and the jury found thereon in favor of Ihe plaintiff.

Where there is not such a preponderance of evidence in favor of the losing party upon a trial, as to impress the mind of a court with the fact that the verdict of a jury has not been honestly and fairly reached after a consideration of all the testimony, courts of appeal are not warranted in interfering to disturb such findings.

It is peculiarly the province of a jury to pass upon questions of fact and a verdict thus reached will not be set aside on appeal, unless it shall plainly appear that a preponderance of evidence in favor of one party or the other has been disregarded by the jury in its deliberations.

Eo element of the kind appears in this case. The request that the jury be instructed that if they found that the goods were sold on ten days’ time that then the action was prematurely brought, was very properly refused as no such issue was presented by the issues, nor was any application made for an amendment.

It will be noticed that no appeal was taken from the order denying the defendants’ motion for a new trial.

The appeal brings up the judgment only, and the facts are, therefore, not before us for review, and upon the record, as presented, we are unable to find any reason for the disturbing the conclusion at which the jury arrive.

Judgment appealed from must, therefore, be affirmed, with costs.

Fitzsimoets, Ob. J., concurs.

Judgment affirmed, with costs.