Tinkham v. Thomas

The Superior Court of New York City

Tinkham v. Thomas

2 Jones & S. 236

CourtThe Superior Court of New York City

DecidedMarch 2, 1872

StatusPublished

This text of 2 Jones & S. 236 (Tinkham v. Thomas) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tinkham v. Thomas, 2 Jones & S. 236 (N.Y. Super. Ct. 1872).

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Opinion

By the Court.—Curtis, J.

The appellant seeks a new trial upon the ground that the verdict is against evidence, and that the court erred in denying the motion for it made upon the minutes. The testimony of the plaintiff, as to the making of the alleged false representations, is contradicted by other testimony, and the question as to whether they were made or not was fairly submitted to the jury, who found for the defendant. It was their exclusive province to determine this question; and an examination of the evidence in the case shows no reason why their verdict should be disturbed. The rulings of the judge, during the progress of the trial, to which the appellants excepted, were [238]*238correct. The entries made by the witness from the statement of the clerk were properly excluded, and the clerk was subsequently called and testified for the appellants.

After the jury had been charged by the court, and were leaving the jury box, the appellants’ counsel handed a paper to the judge, which he alleged contained specific requests on the part of the plaintiffs to charge the jury. The judge refused to receive the paper, or to receive any requests to charge the jury, or to recall the jury for that purpose, some of them having left the jury box and were near the door, although all of them were in the court room,—holding that the counsel should have presented any requests to charge before that time; to which ruling and refusals the appellants’" counsel excepted.

There seems to be a manifest propriety that requests to charge should be presented to the court in the hearing of the opposing counsel, and before the jury are leaving the box, and not handed up in a paper after they are leaving. The nature of these requests, or what they were, is not disclosed by the case, and there appears to be no sufficient reason for interfering with the exercise of the discretion of the court under the circumstances.

The motion for a new trial should be denied, and the judgment of the court below should be affirmed, with costs.

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By the Court.—Curtis, J.

The appellant seeks a new trial upon the ground that the verdict is against evidence, and that the court erred in denying the motion for it made upon the minutes. The testimony of the plaintiff, as to the making of the alleged false representations, is contradicted by other testimony, and the question as to whether they were made or not was fairly submitted to the jury, who found for the defendant. It was their exclusive province to determine this question; and an examination of the evidence in the case shows no reason why their verdict should be disturbed. The rulings of the judge, during the progress of the trial, to which the appellants excepted, were [238]*238correct. The entries made by the witness from the statement of the clerk were properly excluded, and the clerk was subsequently called and testified for the appellants.

After the jury had been charged by the court, and were leaving the jury box, the appellants’ counsel handed a paper to the judge, which he alleged contained specific requests on the part of the plaintiffs to charge the jury. The judge refused to receive the paper, or to receive any requests to charge the jury, or to recall the jury for that purpose, some of them having left the jury box and were near the door, although all of them were in the court room,—holding that the counsel should have presented any requests to charge before that time; to which ruling and refusals the appellants’" counsel excepted.

There seems to be a manifest propriety that requests to charge should be presented to the court in the hearing of the opposing counsel, and before the jury are leaving the box, and not handed up in a paper after they are leaving. The nature of these requests, or what they were, is not disclosed by the case, and there appears to be no sufficient reason for interfering with the exercise of the discretion of the court under the circumstances.

The motion for a new trial should be denied, and the judgment of the court below should be affirmed, with costs.

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Bluebook (online)

2 Jones & S. 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tinkham-v-thomas-nysuperctnyc-1872.