Whilden & Hancock v. Schneider

Appellate Division of the Supreme Court of New York

Whilden & Hancock v. Schneider

175 A.D. 831, 162 N.Y.S. 426, 1916 N.Y. App. Div. LEXIS 10444

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1916

StatusPublished

Cited by1 cases

This text of 175 A.D. 831 (Whilden & Hancock v. Schneider) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whilden & Hancock v. Schneider, 175 A.D. 831, 162 N.Y.S. 426, 1916 N.Y. App. Div. LEXIS 10444 (N.Y. Ct. App. 1916).

Pincite

Opinion

Scott, J.:

The plaintiff, a domestic corporation, and general agent for the State of New York for several foreign fire insurance com[832]*832panies, appointed defendants sub-agents for the city of Brooklyn. This action is to recover the sum of $101.42, with interest . claimed to have been received by said sub-agents as premiums upon certain policies, and not paid over or accounted for. The defendants set up certain offsets or counterclaims.

Although defendants, by their answer, formally denied the receipt of the sums sued for, it seems to be quite clear that they did in fact collect that sum, and that their denial was interposed only to put plaintiff to its proof. That denial, however, forced plaintiff to make proof, which it attempted to do by proving admissions made by defendants by way of weekly reports. The reports themselves were not available, and the trial court was in much doubt whether or not the secondary evidence offered was sufficient. Finally, however, the evidence was admitted, and the case sent to the jury with a charge which assumed that defendants’ receipt of the $J01.42 had been duly proven, and dealt only with the disputed questions as to the offsets or counterclaims asserted by defendants. Upon defendants’ claim the jury found in their favor, and rendered a verdict therefor, entirely ignoring the plaintiff’s claim, which, upon the evidence admitted by the court, had been clearly proven, with the result that the plaintiff, instead of recovering $123.22, as it should have done, had a verdict against it for $458, the total of the counterclaims asserted by defendants. In arriving at this verdict the jury necessarily disregarded and overruled the law in the case, as stated by the trial court. Whether or not the court was right in admitting the secondary evidence may have been doubtful as á question of law, but right or wrong, the jury was bound to accept the ruling of the court on that question, and for their obvious disregard of that ruling their verdict should have been set aside.

It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

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Scott, J.:

The plaintiff, a domestic corporation, and general agent for the State of New York for several foreign fire insurance com[832]*832panies, appointed defendants sub-agents for the city of Brooklyn. This action is to recover the sum of $101.42, with interest . claimed to have been received by said sub-agents as premiums upon certain policies, and not paid over or accounted for. The defendants set up certain offsets or counterclaims.

Although defendants, by their answer, formally denied the receipt of the sums sued for, it seems to be quite clear that they did in fact collect that sum, and that their denial was interposed only to put plaintiff to its proof. That denial, however, forced plaintiff to make proof, which it attempted to do by proving admissions made by defendants by way of weekly reports. The reports themselves were not available, and the trial court was in much doubt whether or not the secondary evidence offered was sufficient. Finally, however, the evidence was admitted, and the case sent to the jury with a charge which assumed that defendants’ receipt of the $J01.42 had been duly proven, and dealt only with the disputed questions as to the offsets or counterclaims asserted by defendants. Upon defendants’ claim the jury found in their favor, and rendered a verdict therefor, entirely ignoring the plaintiff’s claim, which, upon the evidence admitted by the court, had been clearly proven, with the result that the plaintiff, instead of recovering $123.22, as it should have done, had a verdict against it for $458, the total of the counterclaims asserted by defendants. In arriving at this verdict the jury necessarily disregarded and overruled the law in the case, as stated by the trial court. Whether or not the court was right in admitting the secondary evidence may have been doubtful as á question of law, but right or wrong, the jury was bound to accept the ruling of the court on that question, and for their obvious disregard of that ruling their verdict should have been set aside.

It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

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Bluebook (online)

175 A.D. 831, 162 N.Y.S. 426, 1916 N.Y. App. Div. LEXIS 10444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whilden-hancock-v-schneider-nyappdiv-1916.

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