Smith v. Smith

4 Wend. 468

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

The defendant has made a case and moves for a new trial for the misdirection of the judge ; and if the court do not grant that motion, he asks to have the judgment arrested, or given for the defendant non obstante veredicto, or that a repleader be awarded. The misdirection of the judge complained of, was, his instructing the jury that the $500 mentioned in the condition of the bond to be paid monthly, were liquidated damages agreed on by the parties.

One of the rules on this subject is, that where it is agreed that if a party do a particular thing a stipulated sum shall be paid by him, there the sum stated may be treated as liquidated damages. (2 Bos. & Pul. 353.) This rule is strikingly applicable to this case ; in truth it is not a case of any difficulty. It is very evident, from a bare perusal of the bond, that the intention of the parties was, that the $500 for every month’s practice in violation of the agreement, should be the damages that the plaintiff should receive or recover. I think the decision of the judge was obviously correct on this point.

The other point made by the defendant cannot properly arise on a case. The matter for which the judgment will be arrested must appear on the face of the record. Although enough of the pleadings are incorporated in this case to enable us to understand the merits of the motion, the mode here adopted is unusual and improper. It is equally a novelty in practice for the defendant to ask for judgment non obstante veredicto. It is only for a plaintiff that such a judgment can be rendered.

I am inclined to think that the fifth, sixth and seventh breaches were well assigned; and if the application for a repleader was properly before us, it ought not to be granted.

Motion for a new trial denied.